HKSAR v. NG HUNG CHI

CACC 186/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 186 OF 2000

(ON APPEAL FROM HCCC NO. 279 OF 1996)

____________________________________

_______________________________

________________

J U D G M E N T

________________

Hon Stock JA (giving the judgment of the Court):

The case

1 On 7 April 2000 this applicant was convicted after trial before Pang J and a jury, of trafficking in dangerous drugs; and on 2 May 2000 she was sentenced to a term of 12 years' imprisonment. She now seeks leave to appeal against conviction and sentence.

2 The indictment asserted that on 3 June 1996 inside Flat B on the 8th floor of a building in Temple Street, Yaumatei, the applicant trafficked in a mixture containing 203.46 grammes of heroin hydrochloride. She pleaded not guilty.

3 The flat had been owned by her common law husband Kam Yiu-sum, but in June 1990 he assigned the premises to her, so she was, at the material date, the registered owner of the property. On 18 January 1996, that is, some four and a half months before the alleged commission of this offence, Kam was sent to prison for 10 years for trafficking in a dangerous drug. The applicant normally resided elsewhere with her teenage son.

4 Three police officers gave evidence at the applicant's trial on the general issue, but the applicant did not give evidence nor was any called on her behalf.

5 The effect of the prosecution evidence was that the police were keeping watch by the staircase of the flat and, in mid-afternoon on 3 June 1996, they saw the applicant trying to open the grille door of the flat with a key and they surrounded her, told her that they had a search warrant, and then entered the flat which they searched. There was one bedroom in the flat and in a drawer under the bed, the police found a plastic bag which itself contained six plastic bags with heroin; as well as some other bags which also contained heroin. The retail value of the drugs was admitted to be $292,748.93. Also found were 64 resealable plastic bags, as well as a small scale, and a mobile telephone bill, dated 14 April 1996, directed to the applicant.

Oral admission

6 One of the officers PC 51356 Chan Wai-man (PW2) was told to arrest the applicant and what she then said to him was the subject of dispute in the case:

(1) The evidence of this officer was that the applicant made a comment, which he noted in his notebook about six hours later in the police station, and that noted comment was: "I only hid the white powder for my husband. Give me a chance."

One pauses to note that the notebook entry was not admitted as evidence. It, as well as later statements or records, were ruled inadmissible by the trial judge after a voir dire, the judge saying that he was "not satisfied beyond a reasonable doubt that the post record [of the comment at the time of arrest] or the subsequent cautioned interview were obtained under voluntary circumstances or in the manner which the prosecution said it happened." The judge gave no further reason for the exclusion of the statements, so we are, to that extent, in the dark as to the particular matter or matters that concerned him.

(2) This noted comment is said to differ in its effect from other evidence given by the same officer. When cross-examined in the course of the voir dire, it was put to the officer that the applicant had said to him that the white powder did not belong to her, and the reply was: "I made a post record and in the post record it contains what she had said after caution. She said that her husband placed the white powder there." The difference is that there is in this version no admission that the applicant herself placed the drugs there. It is suggested that there is a further difference, namely, that it is not necessarily to be concluded that the applicant knew before she saw the drugs at the time of the police discovery, that the drugs were there; in other words, that it may be that she was making an assumption that, since the drugs were there, they must have been put there by her husband before his arrest.

Immediately after this, there was the following exchange between the court and the police witness:

"COURT: Sorry, just a minute, what were the exact words said?

A. At the scene?

COURT: Yes.

A. She said, "The white powder was placed there by my husband. Give me a chance."

COURT: "The white powder was placed there by my husband"?

A. "The white powder was hidden there by my husband."

COURT: Look at the notebook. Read it out aloud.

A. "I hid the white powder for my husband. Give me a chance."

COURT: That's different.

A. Just now I remembered it wrongly." (tr. pp. 58-59)

There was no contention that anything which the applicant said upon her arrest was inadmissible; merely that the signing of the notebook followed impermissible conduct, as did the subsequent cautioned statement. The contention in relation to the oral response to the caution upon arrest was that the words alleged were not said; and we note that in the voir dire it was suggested that the applicant had said that the white powder did not belong to her. The arresting officer gave evidence again on the general issue about the words spoken upon arrest at the flat, and on this occasion he recounted to the jury the incriminating words, that the applicant herself had hidden the drugs for her husband.

(3) Evidence was also given at trial by an Inspector Li, and he said that when the applicant was arrested she had commented that the drugs were not hers as they belonged to her husband and "that was all that I heard."

(4) The third officer who gave evidence, that is, the officer who searched the premises, said that he did not remember whether the applicant said anything.

7 The applicant was later taken to premises in Lok Wah Estate where she lived with her teenage son, and a search was conducted with nothing incriminating found there.

8 That, then, was the evidence against the applicant.

Discretion

9 The first two grounds of appeal overlap. Their effect, and that of the argument advanced, is that the judge, having expressed his dissatisfaction with the prosecution evidence as to the voluntariness of the notebook entry, "the proper course was not to allow any evidence to be given of the accused alleged verbal reaction ... to her arrest," by which is meant that the judge ought to have exercised his discretion to exclude the evidence of the oral answer on arrest. It is also said in argument that the judge did not express his satisfaction that that oral response was voluntary.

10 It is not argued that the oral admission, if made, was in fact not voluntarily made, or that there was any preceding conduct which ought to have been addressed which might have impacted upon the voluntariness of the oral response. We note that the conduct alleged, as against the admissibility of the post record and the later written statement, all related to events or suggested events well after the arrest at the flat, so that there was no material to suggest that, despite the denial of the oral admission at the time of arrest, such words as may have been spoken might not have been spoken voluntarily. There was no suggestion by experienced counsel who acted for the applicant at trial that the oral answer, whatever it was, at the time of arrest, might have been involuntary. Indeed, there was discussion about the very question, namely, whether voluntariness arose in the light of allegations directed at the post record and later statements and despite the denial that the incriminatory oral remark on arrest was made. In such circumstances, there was no need for the judge to make an express finding about it.

11 It is said that the judge ought to have exercised his discretion to exclude the oral admission. It is argued that the judge does not appear to have addressed the question of his discretion to exclude the evidence in the light of the contradictory testimony which we have rehearsed, or to consider whether the probative value of that evidence was so slight as to be outweighed by its prejudicial evidence. It is conceded that the judge was not asked to exclude the evidence on this basis. Having reviewed the evidence, we do not think that there existed a sufficient basis for excluding it in the exercise of discretion.

Comment

12 Then there is a ground which says that the judge ought not to have made a particular comment to the jury about something defence counsel had said in his closing address. What had happened was that the applicant had breached her bail conditions by failing to appear in court in 1997, and thereafter she could not be found until her arrest in September 1999. This conduct of hers had potential for assisting the prosecution as evidence of flight. In this connection, we have the following passage from the summing up:

"The mere fact that a defendant chooses not to answer bail is in itself not evidence of guilt. Remember, I repeat, the mere fact that a defendant chooses not to answer to bail is in itself not evidence of guilt. A defendant may choose not to turn up for her trial of many reasons. For example, out of panic or confusion. Mr Duncan suggested to you in a speech yesterday that it could be out of her fear that she might be wrongly convicted of the offence.

Members of the jury, this is speculation on Mr Duncan's part because there was no evidence before you that this was what the defendant thought at the time. You are not to speculate. I must remind you that you should not equate her absconding bail as evidence of her guilt. You will still have to go through the prosecution evidence and satisfy yourself beyond reasonable doubt before you can convict her, right." (tr. pp. 13-14)

13 This is said to have been a critical misdirection. We do not think that it was a misdirection at all. We do not have the benefit of a transcript of counsel's address but if, as it seems, counsel was putting to the jury what was tantamount to evidence on his client's behalf, a client who had given no evidence at all, then the judge's comment was warranted.

Knowledge

14 The next complaint is that the judge failed to tell the jury that if the words attributed to the applicant by the arresting officer to the mere effect that the drugs belonged to her husband, or that her husband had placed the drugs there, were the words used, they were consistent with innocence; given, in particular, that the words allowed, on one view, of an implication that the applicant only knew of the drugs then and there on the police discovery of them, and was putting two and two together when saying that her husband had placed them there.

15 It is true that the judge did not tell the jury that, if they thought that the applicant had merely said that the drugs were husband's, that did not necessarily mean that she knew of them before the raid. But this was not a matter of law. This was a question of fact which the jury could assess and understand without specific assistance and we note that the judge expressly told the jury that they could not convict the applicant unless they were sure that she knew "that the substance was inside the drawer at the time.". In any event we see that, having canvassed with the jury the various versions given by the officers, as to the comment of the applicant, the judge then told them that if they were sure that she said that she hid the powder, then that was evidence for them to find that she knew of the heroin in the premises. The implication was that this was the version of which they had to be satisfied in order to make a finding of possession. Further we think it unrealistic to assert that on the 'milder' of the two versions, namely, that she had said the drugs were her husband's, the applicant could have been referring to anything other than previously acquired knowledge. This ground of complaint cannot, we are satisfied, be supported.

16 It is further argued that the judge did not direct the jury as to the legal consequences of a factual finding that the drugs had been left by the husband in the flat. The judge told the jury that a condition precedent to a finding of possession of the drugs was a finding that the applicant knew the drugs to be there. But what, so goes the argument, if that was all? Where then lay the issue of her control, especially if she had no say in the matter? There was no direction, for example, by the judge, on the issue of joint enterprise.

17 It was, in our judgment, impossible for the applicant to escape a finding of possession of the drugs, whichever version of the oral admission was accepted by the jury. On either version, it seems perfectly clear that the applicant was saying that she already knew the drugs to be in the premises, and, as we have already pointed out, the judge had told the jury that they could not convict the applicant unless they were sure that "at the time" she knew the substance to be inside the drawer. This was not a case in which there was, in the circumstances, a need to direct the jury along lines which might have been necessary had the applicant been sharing the premises with her husband, so that her mere knowledge of their presence might not necessarily constitute control. At the date of their discovery by the police, she was the owner of the premises, and the only person to go there on a regular basis. She had the keys. The room was hers, and no one else's. The man Kam was in prison. He had no access or control over the room. It is quite clear, therefore, that she had control over whatever property in those premises was there, and of which she was aware. Once it was shown that she knew the drugs were there, then she was, in the factual context of this case, in possession. There was no need for the judge to say more on the issue of possession than he did.

Trafficking

18 The issue of trafficking, though, is more problematic. If the applicant was guilty of trafficking in the circumstances of this case, she could only have been guilty in one of two circumstances. The first is that she was in possession of the drugs in the room for sale by herself. Given that Kam had, by that date, been in prison for some months, this is the more realistic possibility. The other possibility, the less realistic one, was that she was keeping the drugs for her husband so that he, perhaps through an agent other than the applicant, might take the drugs and sell them. In such an instance, she would be storing them to assist in that purpose. As we shall shortly see, it appears that the prosecution were putting their case on the latter basis, no doubt relying on the suggested comment by the applicant that she was hiding the drugs for her husband.

19 It is true that the judge told the jury that, before they could convict the applicant, they had to be sure that the drugs were intended for trafficking, but we are not entirely happy with the way in which the matter was left. What the judge said was this:

"The prosecution does not have to prove actual trafficking activities. All they need to show is that the dangerous drugs or any part thereof are intended for no other purposes except to be used for trafficking in a sense which I have described. It is not easy to have direct evidence on the defendant's object or intention unless she tells you, right. Bear in mind what I have told you earlier on about drawing of inferences or conclusions from the established facts, right.

If you are satisfied beyond reasonable doubt that the defendant was in possession in the drugs for no other purpose but for the purpose of trafficking, then it is your duty to convict her of the present offence." (tr. p. 10) (Emphasis added).

20 Thus far, there can be no complaint. But what was the "sense which [the judge had] described" as constituting trafficking? We find that earlier in the summing-up:

"Trafficking includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drugs or - now, that is the part which is relevant - possessing the dangerous drugs for the purpose of trafficking. We are not concerned with importing or exporting activities. We are not concerned with procuring or supplying activities. We are solely concentrating on possessing the dangerous drug for the purpose of trafficking, right.

If a person engages in activity of weighing and packaging dangerous drugs with a view of disposing the same, such activities would come within the meaning of dealing with or in a dangerous drug as defined in the ordinance. If a person is engaged in a storage of a dangerous drug as the prosecution would like you to find in this case, such activities would come within dealing in or with the dangerous drugs or possessing the dangerous drugs as defined in the ordinance." (tr. p. 7) (Emphasis added)

We pause to note that the phrase we there see, namely, 'possessing the dangerous drugs as defined in the ordinance' must, in the context in which the judge was speaking, refer back to part of the first of these two cited paragraphs, which is not a reference to mere possession, but to 'possessing the dangerous drugs for the purpose of trafficking'.

21 It is difficult to escape the conclusion that what the judge there said to this jury was that storage, on its own, of a drug, was a form of dealing, or possession for the purpose of trafficking. Yet it cannot, we think, be gainsaid that mere storage is not in itself trafficking. Storage might well be, and very frequently is, but part of an exercise in trafficking to which the storeman is, in one way or another, a party. On the other hand, and by way of example only, the addict who stores a quantity of drugs in a drawer for intended self-consumption is not, by that storage, constituted a trafficker.

22 In this case, where the suggested admission by the applicant was to the clear effect that she was merely storing the drugs, storage and its significance was material. The jury were not instructed for what additional factor they had to look - for example, a joint enterprise with Kam, who himself or through another would be selling the drugs; or intended sale by herself; or intended delivery by her, on Kam's instructions, to a third party - before they could find that the applicant was party to (possession for) trafficking. This was, we think, a material omission.

23 What, then, is the consequence of this misdirection? It is obvious that the jury was sure that the applicant knew that the drugs were in the premises, and that she was, in all the circumstances, in possession of them. The judge had correctly directed the jury that, in order to establish possession, the prosecution had to prove an intention to possess, as well as the power to take physical possession, and he had made it clear that prior knowledge was a condition precedent to a finding of possession. Furthermore, we have explained at [17] above why, in our judgment, a finding of possession was inevitable once the oral admission (whichever version) was accepted to have been made. It follows that the misdirection should not be permitted to impact on the finding of possession by the applicant of the dangerous drugs which were in the premises.

24 It might then be argued that, given the packaging and the paraphernalia (plastic bags, and scale), and the fact that Kam was to be in prison for a long time, this was a case in which the evidence could only be consistent with trafficking by the applicant in dangerous drugs. This would be an argument for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance. Whilst we think that the likelihood of a finding adverse to the applicant on the issue of trafficking would have been high, had that issue properly been left to the jury, we cannot say that it was inevitable. There was no admission by the applicant as to trafficking, and it was common ground that the factual backdrop to the case involved another person, Kam, who had only months before been sent to prison for trafficking. There was no direct evidence to show that the applicant, despite her knowledge of the presence of the drugs, had, by the time of her arrest, handled the drugs which were discovered. This is not a case in which it would be appropriate to apply that proviso.

Conclusion

25 For the reasons we have provided, we find that the conviction for trafficking is not satisfactory, and we propose to set it aside.

26 Section 83A of the Criminal Procedure Ordinance provides as follows:

"(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity."

27 It was open to the jury on the indictment to find the applicant guilty of possession of the dangerous drugs to which the indictment referred, and it is clear that on the finding of the jury, that jury must have been satisfied of facts which proved the applicant guilty of possession of those drugs. The proper course in this case is to exercise our powers under section 83A(1) of the Criminal Procedure Ordinance, Cap 221 and substitute a conviction for possession of the drugs which are the subject of the indictment. On the facts of the case, it might be more appropriate for there to be a conviction under section 37(1) of the Dangerous Drugs Ordinance, Cap 134 for being the owner of premises and permitting them to be used for the storage of drugs, but that is not, in our view, a verdict which was open to the jury on the indictment.

28 Accordingly, we shall grant the applicant leave to appeal against conviction and, treating the hearing of the application as the appeal, allow the appeal to the extent that we quash the conviction for trafficking in dangerous drugs and substitute therefor a conviction for possession of the drugs found in the premises.

29 We shall hear counsel on sentence at 9.30 am on 13 March 2002. The applicant is remanded in custody pending our determination of sentence.