HKSAR v. SOO TIM SHING AND OTHERS

CACC 232/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 232 OF 1997

(ON APPEAL FROM HCCC No.320 OF 1996)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the 1st applicant faced one count of trafficking in a dangerous drug jointly with the 2nd and 3rd applicants. He also faced one count of causing bodily harm by furious driving and one count of reckless driving. The 2nd and 3rd applicants faced only the trafficking count. Each was convicted of the counts he faced. The 1st applicant was sentenced to 23 years on the first count, 2 years on the second count and 18 months on the third count with one year of the sentences on the second and third counts to be served consecutively to the sentence on the first count. The 2nd and 3rd applicants were each sentenced to 23 years. Each applicant now seeks leave to appeal against his conviction.

2. It was the prosecution evidence that a police party was keeping the car park in Waterloo Road near the Baptist Hospital under surveillance and were, in particular, directed to look out for private car GU 2116. When this car was finally observed, it was followed to Sai Ching Street, Yuen Long. It reached that destination at about 11:15 a.m. on 9th June 1996. The 1st and 2nd applicants were observed to be on board the vehicle. When it was stopped, it was approached by the 3rd applicant who spoke to the 2nd applicant. The 2nd applicant then alighted and went with the 3rd applicant in the direction of the car park of the Fu Shing Building. The car was also driven in the direction of that building. The 2nd and 3rd applicants went up in the car park lift and, after arrival at the second floor, were seen to board private car GS 6085. This vehicle was then driven out of the car park to the offside of GU 2116. The 2nd applicant got out of GS 6085 carrying a dark travelling bag which he put into the boot of GU 2116. He then got into the front seat and the two cars moved off. Later GU 2116 was involved in an accident with a police vehicle and when the police party searched the car the bag was found. It was opened and it was seen to contain dangerous drugs. It was the prosecution case that all three applicants had knowledge of what was contained in the bag and were trafficking therein.

3. The 1st applicant gave evidence saying that he was driving GU 2116 at the request of a person called Kwong Chai, a dealer in used cars, who asked him to drive it to Yuen Long as he wanted to show the vehicle to someone. It is important to set out in full his evidence as it purported to exonerate not only himself but also the other two applicants. As to Kwong Chai, he said:

"We have kept in touch since then (about a year ago) and sometimes we came out to have drink together. Then I realised that he was a second-hand car dealer and that he owned a garage in Yuen Long in partnership with other people. And he was dealing in left-hand drive vehicles which were destined for mainland China."

4. As to the events of the 9th of June, he gave the following evidence:

"Q. Did Kwong Chai describe to you the particulars of the vehicle you were about to drive?

A. He gave me the registration number and that it was a Honda Civic.

Q. Now, it is common ground that the car was GU 2116, is that right?

A. That's correct.

Q. Now, did Kwong Chai tell you how to get the key to the car?

A. Yes, he said it was kept in the exhaust pipe.

Q. Did Kwong Chai tell you anything else, can you remember?

A. Just about the effect of what he said and he had told me to ring up to get a car and drive it there.

Q. Now, what did you do then after the telephone call by Kwong Chai?

A. I thought over the matter for a while and since I was not familiar with the roads in Yuen Long, so I decided to telephone a friend, Yu Kam-man, to consult him as to how to get there. And since it was a Sunday, so I asked him if he was free. If he was free, then he could be with me to give me directions. He said that he was free and agreed to be with me and asked me to go to Tai Wai to pick him up. I mean to go to his house to collect him.

Q. His house was in Tai Wai, wasn't it?

A. Correct.

Q. Carry on, please.

A. I then got up and I went to collect the car. I promised to pick up Yu Kam-man at 10:30 and when I got there, he was already standing outside his house waiting for me. After picking him up, we then went to Yuen Long together. It was sometime after 11 when I got to somewhere behind Fu Shing Building. I saw that it was Sai Ching Street, so I telephoned Kwong Chai. He said, 'I'll be there in five minutes. You wait for me.' After about five minutes, he came up to the car. I thought I should leave the car to him there but he said that it was still too early. It was not yet the appointed time with someone. Then he said, 'I have to lend my car to someone. You get something for me and put it into the car for me.' I said, 'That's okay' and he said, 'It's just somewhere in front.'

Q. So you spoke to Kwong Chai and Kwong Chai said it was somewhere in front. What did you understand by that, somewhere in front of your car or what?

A. Well, he probably meant that this car was in front.

Q. And what happened next?

A. Then I stayed there to guard the car and I introduced Ah Man to him and then told him to bring it to the car for me. And then I asked Ah Man to go with him to collect it.

Q. Did Ah Man go there?

A. Yes.

Q. And what did you do then?

A. Before he left, he told me to drive the car closer to the entrance of the car park and stop there.

Q. And did you do that?

A. Yes.

Q. Now, what happened next?

A. Then I drove the car a bit to the front and waited for him there.

Q. Yes.

A. After waiting for several minutes, I then saw Kwong Chai drive a green private car and then stop it alongside my car. He then spoke to me, 'Hey, put it in the boot first'. I then opened the boot. Then he spoke to me, 'You drive the car to Fairview Park for me first. You then go to the Pik Wu Restaurant to have tea. I will come after I have left the car with somebody.'

Q. And what did you say at that time?

A. I said, 'That's fine'. Then he closed the door and Ah Man got back into the car and then we set off.

Q. You said you opened the boot of your vehicle. Was anything placed into the boot then?

A. Probably so.

Q. Where did you go after you set off?

A. We left and we were heading for Fairview Park."

5. He then told of a collision which he had with a police vehicle while driving to Fairview Park and said that after the collision when he turned to look the 2nd applicant was "just alighting from the car. Perhaps he wanted to find out what was going on". It was his evidence that the police then repeatedly assaulted him and dragged him from the car. He denied that he had ever deliberately run anyone down and denied having any knowledge that the bag contained dangerous drugs.

6. The 2nd applicant did not give evidence.

7. The 3rd applicant called three alibi witnesses but he also did not give evidence.

8. Mr. Hanif Mohamed Mughal, who appeared for A1, argued, in his first ground, that the judge erred in law when directing the jury as to the way in which they should approach the evidence of the 1st applicant. It was suggested that there was a serious misdirection which wrongly threw an onus upon the applicant to establish his defence.

9. Deputy Judge Beeson (as she then was), at page 3 of the summing-up, gave general directions as to the burden and onus of proof saying:

"As you know now, the prosecution must prove the defendant's guilt in this case. They do not have to prove their innocence. Before you can convict the defendants, you must be sure of their guilt. That is the same thing as being satisfied beyond reasonable doubt of their guilt. Your task is not to decide whether these defendants are innocent or guilty of the offences. Your task is to decide whether they are guilty, or not guilty, of the charge or the charges they face. If the prosecution evidence has not made you sure in respect of the trafficking charge that D1, D2 and D3 had possession of the dangerous drug, in other words that they had it in their custody and control, that they had knowledge that what they had in their possession was dangerous drugs, and that what they had in their possession was in fact dangerous drugs, then it is your duty as jurors to acquit them."

10. No criticism is made of this general direction. It was clear and correct. The judge thereafter, on several occasions, told the jury that they could only convict if they were sure of guilt.

11. The judge, when dealing with the evidence of the 1st applicant on the first charge, said:

"The defendant has given evidence in this case and you have had the opportunity of seeing and hearing his evidence about what happened and how he came to be driving a car with such a valuable cargo. Bear in mind that the 1st defendant was under no obligation to give evidence, but he chose to do so and you should examine his evidence in the same way as that of any other witness.

There is one major difference, however. The defendant is under no obligation to prove anything at all. The burden is still on the Crown to make you sure of his guilt. If the defendant, by what he has told you about what happened, makes you unsure of important elements in the Crown case, or makes you feel that it is probable that things happened as he said they did, then he has succeeded in throwing doubt on the Crown evidence, and you must acquit him. However, even if after due consideration you conclude that the 1st defendant has concocted a story, and is lying about what happened, you cannot convict him unless you are absolutely sure that the Crown has proved he had possession of the dangerous drugs by having them in his custody and control, either alone or with the 2nd and 3rd defendants, and that he had knowledge that what he was carrying with him was dangerous drugs. Unless you can be sure of that, you have to acquit the 1st defendant." (Emphasis supplied.)

12. Criticism is made of the use of the words underlined. It is contended that the judge here introduced a suggestion that there was some onus upon the applicant. This contention was not, however, pursued as it was conceded that, when the passage was read as a whole, it was clear that the judge was saying that if the jury were unsure, then they must acquit. It is trite to observe that it is correct for a judge to direct a jury that if they believe a defendant or think what he says is probably true, they should acquit. The judge must, however, go on to say, as she did here, that if they are left unsure then that must also lead to an acquittal. Indeed, in our view the judge could not have stated the onus upon the prosecution in a way more favourable to the applicant than she did in this passage. The real complaint, however, arises out of a passage which followed shortly thereafter where the judge said:

"It might be that while the vehicle was parked at Fairview Park and D1 goes off to the restaurant to meet Kung Chai, that somebody might steal items from the boot. So Kung Chai was taking, you might think, a very grave risk in not alerting the occupants of the car to what was in the bag. Nevertheless, it is possible that he was so keen to obtain an unwitting courier service that he overlooked those risks and decided to take a chance. Certainly that is what the 1st defendant's evidence suggests. And if you think that what the 1st defendant describes was reasonably probable, you must give the 1st defendant the benefit of the doubt that has been raised by his evidence." (Emphasis supplied.)

13. It is contended that in this passage the judge throws an onus upon the applicant to establish what he was saying on the balance of probabilities. This statement must be looked at in context. The judge was not here giving any general direction as to onus. She was doing no more than saying that if they thought what the applicant said was reasonably probable, then they must give him the benefit of the doubt. This was a correct statement if what he was saying was reasonably probable, then he was entitled to the benefit of the doubt. It certainly would not, however, have been correct to have said that he could not be acquitted unless his evidence overall was reasonably probable. The judge was here doing no more than saying, as judges often do, that if the jury believed the defendant or thought that what he said might be true, they must acquit him. It would certainly not be enough to leave the matter there. The judge must go on to make it plain that at the end of the day if there is any uncertainty about the prosecution case which leaves the jury unsure of guilt, they must return a verdict of not guilty.

14. The judge went on immediately after the passage complained of to say:

"In that regard, you also have to consider peripherally the question of the identification. Obviously if you set aside that the person who was at the scene was not Kung Chai but the 3rd defendant, that is a matter that puts a different light on the story. However, if what the defendant has said to you in respect of this matter raises or causes you to have any doubt about the Crown case, D1 has to be given the benefit of those doubts." (Emphasis supplied.)

The matter did not, however, rest there as the judge went on:

"The defendant does not have to give evidence. He could, if he had wanted to, have sat back and watched the prosecution try and establish the case against him without doing or saying anything. You must remember that he is not required to establish his innocence at all. He is not required to prove anything at all. And you must give him the benefit of any doubts that you have as a result of his evidence." (Emphasis supplied.)

15. Shortly thereafter, having dealt with the effect of lies, the judge went on:

"However, even if you find that you do not believe any of his evidence, it still does not take the burden away from the Crown. You have to be satisfied that everything happened at Sai Ching Street in relation to the major matters as the witnesses say. You would have to be satisfied on the Crown evidence that it was D3 and not Kung Chai who was at the scene. If you cannot be satisfied of those points, those are the doubts that you have to abide by and acquit." (Emphasis supplied.)

16. We are satisfied that, when the general direction as to onus and burden is read together with the passages we have set out above, the jury would have been left in no doubt that the judge was telling them not only that if they thought the 1st applicant's evidence as to the directions given by Kung Chai was reasonably probable, then they would give him the benefit of the doubt but also that, at the end of the day, whatever view they took of his evidence he was entitled to be acquitted if there was any doubt in their mind as to the truth of the prosecution case.

17. Mr. Macrae, who appeared for the 2nd applicant and Mr. Lawrence Lok, S.C., with him Mr. Hui, also relied upon this ground, each arguing that vital evidence in support of their defence came from the 1st applicant and that, if a misdirection was given in relation to his evidence, it affected the other two applicants as much as it did the 1st applicant.

18. For the reasons we have given, we are satisfied that the jury was in no way misled as to the way in which they approached the evidence of the 1st applicant, and are satisfied that this ground has no merit.

19. Mr. Mughal, in his second ground, argued that the judge "gave no direction to the jury as to the manner in which the civilian evidence or the police officers should or should not be regarded." This was also the second ground of Mr. Macrae. It was argued that there was no direction from the judge that the jury must not infer from the fact that the applicants were caught in consequence of a surveillance operation that they were the targets of that operation and that their guilt could, therefore, be to an extent inferred from that fact.

20. It is true that juries are often told to infer nothing from the fact that a defendant is apprehended in consequence of a surveillance operation. A failure, however, to give such a direction will not be necessarily fatal to a prosecution and it was certainly not so in the present case. What was revealed in the evidence was that the vehicle GU 2116 was the target of a surveillance operation. It was never suggested by the defence that that vehicle was wrongly targeted or that the third man had not, pursuant to his own plan, used it to carry dangerous drugs. The defence was that Kung Chai who dealt in used cars had, without the knowledge of either the 1st or the 2nd applicants, orchestrated the transfer of the drugs using the vehicle and using those two applicants as unwitting couriers.

21. In the context of the present prosecution, we are satisfied that there was no danger that the jury would, from the fact of surveillance, have drawn conclusions against the applicants which would have led them to convict. The issue they had to consider was a clear-cut one. Were the two applicants innocent dupes or were they involved in the dangerous drugs operation? It was not in issue that a dangerous drug transaction was going on. The judge clearly outlined to them the evidence upon which they could rely and the real issues that were before them. We think it fanciful in the circumstances of the case to suggest that the jury might have considered that an inference of guilt could be drawn from the fact that the police had instructions to keep the vehicle under surveillance.

22. That disposes of the principle grounds argued by Mr. Mughal and Mr. Macrae. Mr. Macrae, however, had a third ground which was that the jury might have been misled, by the direction set out hereunder, into believing that if one defendant was guilty they all were:

"If you find the facts of the Crown case proved so that you can be sure of guilt of one or more of the three defendants, then you can be assured that as a matter of law, that what they were doing was trafficking in the drug."

We do not consider that there is any possibility that the jury might have been misled by this passage. If there were such possibility, it was clearly set at naught by the passage which occurs three pages later where the judge said:

"As a result of your deliberations, you might find one or two, or all three, of the defendants guilty of the trafficking charge, or not guilty of the trafficking charge. The fact that you find one defendant guilty or not guilty of the trafficking charge, does not mean that you can or must reach the same verdict on all the defendants."

23. We turn now to the other two grounds that were relied upon by Mr. Lok for the 3rd applicant. The first of these which questioned the admissibility of evidence regarding a portable phone was not argued. The only ground left is a contention that the judge failed clearly and properly to direct the jury that they must be sure that the 3rd applicant had been in possession of the drugs and had knowledge that they were dangerous drugs before finding him guilty. Mr. Lok, when arguing this ground, pointed out that when the judge was directing in relation to the 1st applicant and the 2nd applicant, she repeatedly emphasized the fact that the prosecution had to establish knowledge on their part. He submits that the judge did not mention possession or knowledge when directing the jury in respect of the 3rd applicant and that this was a fatal omission as it was incumbent upon her to do so.

24. It is not correct to say that there was no direction of this kind as regards the 3rd applicant. At the very outset, the judge had said:

"If the prosecution evidence has not made you sure in respect of the trafficking charge that D1, D2 and D3 had possession of the dangerous drug, in other words that they had it in their custody and control, that they had knowledge that what they had in their possession was dangerous drugs, and that what they had in their possession was in fact dangerous drugs, then it is your duty as jurors to acquit them."

25. It was the evidence of the prosecution that the 1st and 2nd applicants had driven to Yuen Long and were met by a third man and that the 2nd applicant then went with the man and returned with the bag later found to contain dangerous drugs and placed it in the boot of the car being driven by the 1st applicant. It was the evidence of the 1st applicant that this had occurred. No issue at trial was taken by the 3rd applicant as to this evidence. The custody and control of the bag by the third man was established by all of the evidence at trial and was not a live issue. Indeed, Mr. Lok very frankly conceded before us that knowledge on the part of the third man was not an issue. The only issue as regards the 3rd applicant was whether he was the third man. That issue was squarely placed before the jury. In such circumstances, we are satisfied that the direction which the judge gave was sufficient and that there is nothing in this ground.

26. We are satisfied each of the applications must fail and each is, therefore, dismissed.