HKSAR v. MAK CHEUK KIT

CACC 305 /2018

[2020] HKCA 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 305 OF 2018

(ON APPEAL FROM DCCC NO 1008 OF 2017)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant faced a single charge that, on 9 November 2016, in a private car in a street in Yuen Long, New Territories he trafficked in a dangerous drug, namely 21.85 grammes of a solid containing 17.70 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The appellant pleaded not guilty but, on 28 September 2018, was convicted after trial by Deputy Judge Bernard Chung (“the judge”) in the District Court.  On the same day, he was sentenced to 5½ years’ imprisonment.

3.  On 10 October 2018, the appellant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction.  On 23 October 2019, he was granted leave to appeal on Grounds 1 and 2 of his Perfected Grounds of Appeal, dated 8 May 2019, by the Single Judge.  On 17 January 2020, we dismissed his appeal and said we would hand down the reasons for our decision in due course.  These are our reasons.

The prosecution case

4.  The prosecution called nine witnesses at trial: seven police officers involved in the investigation (PW1-PW7), a government chemist who was responsible for collecting and profiling a DNA sample from the appellant (PW8), and an expert in DNA analysis (PW9).  The case for the prosecution was a circumstantial one.  Most of the prosecution evidence at trial was not challenged by the appellant.

5.  In the early hours of 9 November 2016, a team of uniformed police officers, who were conducting a mobile patrol in Yuen Long, noticed two private cars, one a Mercedes Benz bearing registration number RM984 (“RM984”), and the other a Toyota Camry bearing registration number UD9633 (“UD9633”), parked on Tai Lee Street and a man standing in between the cars.  When the officers stopped their police vehicle next to RM984, which was the car at the front of the two vehicles, PW1 noticed a male person[1] (whom we shall call at this stage, as did the trial judge, “X”) alighting from the driver’s seat of UD9633 and running away.  PW2 then went to look for X but in vain.

6.  The police made enquiries of the man standing in between the two vehicles and the female passenger inside RM984, and conducted a search of RM984.  Nothing suspicious was found.

7.  There was, at the time, no one on board UD9633.  Upon a search of the vehicle, police officers found 111 small plastic bags containing a total of 17.7g of cocaine narcotic (with an estimated street value of some HK$24,000) in an accessory compartment under the armrest next to the driver’s seat.

8.  On the front passenger seat was a black shoulder bag.  Inside this bag were a number of documents bearing the appellant’s name.  These documents, all of which were valid at the time, included a Hong Kong Identity card, a Hong Kong driving licence, a China Re‑Entry card, an HSBC ATM card and a Student card.  Other items, which included a membership card in the appellant’s name for a Spa in Shenzhen, an Octopus stored-value card, a carpark card, an ESSO Smile card and three paper amulets, were also found inside the vehicle.

9.  Five separate stacks of cash amounting to more than HK$164,000 were further discovered in various parts of UD9633, as follows:

(1) HK$13,507.05 in a compartment at the front right door^[2], which would have been plainly visible to the driver;

(2) HK$14,305.60 inside the accessory compartment to the left of the driver seat^[3];

(3) HK$15,500 inside the accessory compartment under the armrest next to the driver’s seat, where the dangerous drugs were also found^[4];

(4) HK$26,650 and RMB100 inside the compartment of the front console^[5]; and

(5) HK$95,157.60 inside the black shoulder bag on the front passenger seat^[6].

10.  In addition, a set of false vehicle number plates with registration number HE4765 was lying on the floor of the rear passenger seat; while three mobile telephones were found in different locations inside UD9633.  It was an admitted fact that the registered owner of UD9633 was the appellant’s mother[7]. The Immigration Records of the appellant, which was also agreed at trial[8], showed that the appellant was in Hong Kong at the time of the incident.

11.  Some 10 months after the incident, at about 4:45 am on 20 August 2017, a police officer (PW6) encountered the appellant while on patrol in Yuen Long.  When PW6 requested the appellant to produce some identification, the appellant immediately turned and ran away.  After a pursuit through the streets in the area, PW6 found the appellant hiding behind a fire-door on the 5^th floor of a building.

12.  The police found no identification documents on the appellant. When asked to produce his Identity Card, the appellant merely said that he had lost it.  The appellant was then arrested and taken to Yuen Long police station.

13.  At the police station, buccal swabs were taken from the appellant for DNA analysis and a comparison was subsequently made with a DNA sample taken from the steering wheel of UD9633.  The result was that the donor of the DNA sample from the steering wheel was probably the appellant.  The odds of the donor not being the appellant were 1 in 674 trillion.

14.  The prosecution case was that X was in possession of the dangerous drugs found inside UD9633 for the purpose of trafficking; and that the appellant was X.

The defence case

15.  The appellant elected not to give evidence but called a witness, Madam Wong, to give evidence on his behalf.  According to Madam Wong, her late husband, who committed suicide on 14 November 2017, was a drug addict with previous convictions for trafficking in dangerous drugs.  As a couple, they knew the appellant and had spent time with him.  She remembered that when her husband was still alive, he had, on several occasions, driven her around in a Toyota motor car, which was similar in colour and model to UD9633.  She was unable to remember the car registration number, but she had seen large amounts of banknotes inside the vehicle.

The Reasons for Verdict

16.  The judge identified the two issues for his decision:

(1) Whether the person referred to as X was in possession of the dangerous drugs in question for the purposes of trafficking; and

(2) Whether the appellant was X?

17.  As to the credibility of witnesses, the judge found all witnesses called at the trial, including Madam Wong, to be honest and reliable.  He specifically directed himself that no adverse inference could be drawn against the appellant unless it was the only reasonable inference to be drawn from the proved facts.

18.  Having considered the decision in R v Chan Kwok-keung and Another^[9], whose facts the judge regarded as similar to those in the present case, he ruled that the evidence of the appellant running away on the day of his arrest could not be relied upon by the prosecution as an admission of guilt, and he accordingly drew no adverse inference against the appellant on the issue.

19.  Having reminded himself that the case was one in which the prosecution relied mainly, if not exclusively, on circumstantial evidence, the judge dealt, first, with the question of whether X was trafficking in the dangerous drugs.  On this issue, he found that X must have been aware of the presence of the dangerous drugs inside UD9633, because he had abandoned UD9633 together with its valuable contents and run away when the police vehicle appeared and stopped near UD9633:

“42. The offence occurred at around 4:13 am in a quiet street in Yuen Long. When the police vehicle appeared and stopped near UD9633, X immediately alighted and ran away without returning. There were dangerous drugs and a substantial amount of cash inside the car. The dangerous drugs were packed in 111 small plastic bags. There were 5 separate stacks of cash in various amounts and denominations placed at various locations in the car, one such stack being found next to the dangerous drugs. Another pair of vehicle number plate, and no less than 3 mobile phones, were also found in this car.

43. To have acted in this way, abandoning all these items found inside the car, X must have been aware of the presence of the dangerous drugs and ran away to avoid being arrested by the police.  On the strength of such evidence, I am satisfied so that I am sure that X was knowingly in possession of the dangerous drugs found in UD9633. This person was using this vehicle as a platform for trafficking in those dangerous drugs.”

20.  Being satisfied that X was trafficking in the drugs, the judge then dealt with the question of whether the appellant was X. Having analysed the evidence, he found that the appellant was X:

“45. The registered owner of UD9633 was the defendant’s mother, therefore, it is nothing surprising to find that DNA of the defendant was found on the steering wheel of the car.

46. The finding of the personal identification documents of the defendant in the car under the circumstances is a totally different matter. The documents found in the black-coloured shoulder bag were personal documents, his: HKID Card, Driving Licence, China Re-entry Card, bank ATM Card, Student Card, even personal photographs, which one would normally expect to be carrying on his person. There was no explanation why these important documents belonging to him were inside this car at the time. When the defendant was arrested in the small hours in Yuen Long some 10 months later, he was not in possession of any identification document. There is no suggestion that he had ever tried to obtain a replacement of any such identification documents that were left inside this car.

47. The evidence of Madam Wong did not cause me any concern on this issue. Her evidence, taken to its highest, is that her late husband had taken her around on several occasions in a private car similar to UD9633 at around the time when the offence occurred. Her evidence cannot be taken to have established that UD9633 might have been used by her late husband at around the time material to this case.

48. Taking into consideration all the evidence available, I am satisfied so that I am sure that the defendant was the person X who alighted from UD9633 and ran away at the relevant time.”

The perfected grounds of appeal

21.  In his Re-amended Perfected Grounds of Appeal dated 18 December 2019, Mr Ross, on behalf of the appellant, relied upon the two grounds for which leave had been granted by the Single Judge. First, it was said that the judge was wrong to find (i) that there was any, or any sufficient, evidence (assuming the appellant was X, which was not admitted) to prove that the appellant knew or must have known that there were dangerous drugs concealed in the accessory compartment next to the driver’s seat of UD9633; and (ii) that the appellant had fled the scene out of a consciousness of guilt, without first warning himself that he may have fled for an innocent reason (Ground 1).  Secondly, it was averred that the judge was wrong to find that there was any, or any sufficient, evidence that X and the appellant were one and the same person, or that he was criminally connected with the dangerous drugs found inside the vehicle (Ground 2).

The appellant’s submissions

22.  It was argued in respect of Ground 1 that the judge should have directed himself, before he was able to find that X had fled out of a consciousness of guilt, that there may have been an innocent explanation for his fleeing, such as fear or panic when he saw police officers approaching in the early hours of the morning.  Mr Ross referred to R v Chiu Siu Tung^[10] and R v Ciantar^[11], for the proposition that the judge was required to direct himself as to whether there might be an innocent explanation for X’s fleeing, and to find that there was no explanation other than a consciousness of guilt.

23.  In respect of Ground 2, it was argued that there was no evidence as to whether a replacement of the personal identification documents of the appellant had been sought or not, or whether UD9633 was being used at the time with the consent of the owner or not.  It was contended that the judge had effectively reversed the onus of proof in relying on the absence of explanation from the appellant for the documents found inside UD 9633, and on the absence of evidence that he had ever tried to obtain replacement documents.

The respondent’s submissions

24.  Ms Hermina Ng, on behalf of the respondent, submitted that it was more logical to deal with Ground 2 and the issue of the identity of X, before considering the element of knowledge.  In this regard, there was other evidence, apart from the presence of the appellant’s DNA on the steering wheel of UD9633, which supported the inference that the appellant was X.  First, more than one important identification document belonging to the appellant was found in the black shoulder bag inside UD9633.  Those documents were not only essential to their owner but of a highly personal nature, some of which would be expected to be carried by their owner at all times.  Secondly, as well as important personal documents, there was a substantial amount of cash (more than HK$95,000) in the same bag.  These were not the sort of items which anyone would casually leave behind.  In the absence of any evidence to explain, challenge or contradict the prosecution case against the appellant, the only reasonable inference was that the appellant was on board UD9633 at the material time on 9 November 2016.

25.  Relying upon the decision of the Court of Final Appeal in Li Defan & Another v HKSAR^[12], Ms Ng submitted that the absence of any explanation in the circumstances of the present case strengthened the inference against the appellant.  That inference was further strengthened by the fact that there was no evidence to suggest the appellant had ever sought to apply for a replacement of important personal identification documents during the period between the discovery of the documents inside UD9633 and his arrest.  Nor was there any evidence to show that UD9633 had been taken without the consent of the appellant or his mother.

26.  The respondent submitted there was sufficient basis for the judge to have drawn the only reasonable inference that the appellant was X.  The reason the judge dealt with the evidence of flight on the day of his arrest was to explain why he did not accept that such conduct could be evidence of the appellant’s guilt.  As for X’s flight, the judge applied the correct test and drew the only reasonable inference he could draw in the circumstances. Ms Ng submitted that there was no need for a professional judge to state in his judgment that he has reminded and directed himself on questions of law: see HKSAR v Lam Hin Fai[13].

Discussion

27.  This was a circumstantial case.  The relevant circumstances were that a male was seen alighting from the driver’s seat of a private Toyota Camry motor car and running away when a police car drew up alongside the two vehicles.  The male left behind in the vehicle three separate bags containing 111 packets of cocaine, worth just over HK$24,000, under the armrest next to the driver’s seat; as well as more than $164,000 in cash, $95,157.60 of which was found in a black shoulder bag on the front passenger seat.  Also in the same black shoulder bag were highly important and personal items belonging to the appellant, namely his Hong Kong Identity Card, his driving licence, his China Re-Entry permit and his HSBC ATM card (valid until the end of November 2023).  Also in the shoulder bag was a Student card in the appellant’s name.  There was also in the vehicle a private Spa membership card in the appellant’s name, and three photographs apparently of the appellant. The vehicle in question belonged to the appellant’s mother and had his DNA on the steering wheel.

28.  When the appellant was arrested 10 months later, he had no identification on him whatsoever.

29.  The facts pertaining to the vehicle and its contents plainly raised at least a prima facie case of possession of the drugs inside UD9633 for the purpose of trafficking, as the appellant’s leading counsel at trial must properly have recognised, since no submission of no case to answer was made.  As in Li Defan, the evidence adduced by the prosecution “plainly called for some explanation”[14] as to why several highly important personal documents of identity, as well as a bank card and more than $95,000 in cash, should have been found in a shoulder bag on the front passenger seat of a vehicle belonging to the appellant’s mother, in close proximity to dangerous drugs and more money; a vehicle which had his DNA on the steering wheel.  There was none and it was not for the court to speculate and conjure up possible explanations as to how the appellant’s personal possessions might have got there, other than in the most obvious way, by the appellant leaving them there.  With respect to Mr Ross’s oral argument that there was no evidence that the vehicle and the appellant’s personal possessions had not been stolen, it was never the defence case at trial that it, or they, had ever been stolen. The judge was, on these primary facts and in the absence of any credible explanation whatsoever, perfectly entitled to infer that they had been left by the appellant when he abruptly left the vehicle.

30.  As for the suggestion that the judge did not direct himself to exclude other innocent explanations before relying on the appellant’s flight from the scene at 4:13 am on 9 November 2016, we cannot conceive of any other reason why he should have run away leaving several important identification documents, three mobile telephones and his bank ATM card, as well as over $164,000 in cash, unless it was to thwart being investigated and arrested by the police for trafficking in dangerous drugs.  As the judge said:

“To have acted in this way, abandoning all these items found inside the car, X must have been aware of the presence of the dangerous drugs and ran away to avoid being arrested by the police. On the strength of such evidence, I am satisfied so that I am sure that X was knowingly in possession of the dangerous drugs found in UD9633. This person was using this vehicle as a platform for trafficking in those drugs”.

To have come up with any other innocent reason for the appellant to run away would have been speculative, fanciful and contrary to common sense.

31.  The inference that the appellant was the person who exited, and then fled, from UD9633 when the police approached, and that he was in possession of the drugs in the vehicle for the purpose of trafficking at the time, was obvious, irresistible and unassailable.

32.  It was for these reasons that the appeal was dismissed.

[1] We have listened to the evidence of PW1, who referred to the person who emerged from UD9633 as “a man in a white top”.

[2] Exh. P78A, Photo 8.

[3] Exh. P78A, Photo 9.

[4] Exh. P78A, Photo 10.

[5] Exh. P78A, Photo 11.

[6] Exh. P78A, Photos 12 and 13.

[7] Admitted Facts, para 6, AB 8.

[8] Admitted Facts, para 4, AB 7.

[9] [1990] 1 HKLR 359.

[10] R v Chiu Siu Tung (Unrep., Crim App No 548/1995, 15 April 1996).

[11] R v Ciantar (2006) 167 A Crim R 504.

[12] Li Defan & Another v HKSAR (2002) 5 HKCFAR 320.

[13] HKSAR v Lam Hin Fai [2016] 2 HKLRD 1227, at para 45.6.

[14] Li Defan, at 335E.