HKSAR v. CHAN HO-KWAI

CACC 210/2021

[2023] HKCA 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2021

(ON APPEAL FROM HCCC NO 4 OF 2020)

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J U D G M E N T

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1.  On 6 September 2021, the applicant was convicted after trial before Deputy High Court Judge McWalters (the judge) and a jury of trafficking in 4.62 kilogrammes of cocaine narcotic. The key issue in the case was whether the applicant knew of the presence of the drugs in several water filter cartridges that were packed in boxes and placed in a black suitcase that he checked in as his luggage on a flight from Johannesburg in South Africa to Hong Kong on 29 May 2019. The drugs were found when Customs officers checked his luggage. He was handed over to the police, and told them after he was arrested and cautioned, “I charged someone $50,000 for bringing back the dangerous drug. I haven’t received the money.” In a subsequent video recorded interview, the applicant said that he came to know a Chinese person by the name of Ng Gor at an amusement game centre, and this person asked him to travel to South Africa and bring back to Hong Kong a package for him, in return for which he would be paid $50,000. He said he was given the black suitcase by a foreigner in South Africa and never opened it.

2.  The estimated street value of the cocaine at the time of the offence was $5,854,880.

3.  The applicant gave evidence in his defence. He denied knowing that the cocaine was concealed in the water filter cartridges and claimed that Ng Gor deceived him into transporting the drugs. He disputed the admissions allegedly made by him to the police, which he contested in a voir dire and at trial. He testified of his dealings with Ng Gor, who gave him $20,000 to buy the air tickets and book a hotel room in South Africa between 25 and 29 May 2019. On 27 May 2019, a foreigner, who spoke Putonghua, handed him a carton box at his hotel (instead of a suitcase as he claimed in his video recorded interview). He opened the box, inspected its contents, and found 3 smaller carton boxes. He opened one of the smaller boxes and found it to contain cartridges, so he did not suspect that they were dangerous drugs. He then placed the 3 smaller carton boxes in his own black suitcase, which he had brought from Hong Kong. At the airport in South Africa, he paid an additional fee for the suitcase to be wrapped. When he arrived at Hong Kong airport and was intercepted by Customs officers, he did not make a verbal admission, and challenged how he was dealt with before and during the video recorded interview, claiming that he had been scolded and threatened by the police officers.

4.  The issue before the jury was whether the applicant knew that dangerous drugs were concealed in the water filter cartridges. The jury convicted the applicant of trafficking in the drugs by a majority of 5 to 2.

5.  On 8 September 2021, the judge sentenced the applicant to 24 years’ imprisonment.

6.  On 23 September 2021, the applicant filed an application for leave to appeal against his conviction, in which the sole complaint was that the judge misdirected the jury. On 17 May 2022, he filed perfected grounds of appeal out of time, advancing five grounds. Ground 1 complained that the prosecution had failed to put forward all available evidence in the voir dire, namely the evidence of Customs Officer 15210. Ground 2 was directed at the judge’s failure to give a lies direction. Ground 3 asserted that the presence of the exhibits officer (PW3) in court before being called to testify constituted a material irregularity. Ground 4 stated that no interpretation of the proceedings had been provided to the applicant. Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory.

7.  After considering the applicant’s case, the Legal Aid Department and the Bar Free Legal Service refused to provide legal assistance to the applicant. However, the Department of Legal Aid submitted a letter dated 30 September 2022 to the court, enclosing a letter from Mr Eric Cheung of the Clinical Legal Education Office of the University of Hong Kong dated 14 September 2022, attaching a Joint Note of Legal Advice from Mr Eric Cheung and Mr Josiah Chan. In the Joint Note, Mr Cheung and Mr Chan, having acknowledged they had not considered the closing speeches of counsel and the discussion between the judge and counsel on the contents of the summing up, raised for consideration the judge’s failure to give directions on suspicion and to properly address the applicant’s previous inconsistent statements. The Legal Aid Department advised that it had considered the Joint Note and was of the view that legal aid should be refused.

8.  At the leave hearing, the applicant applied for an adjournment to arrange for legal representation. It was noted that he had been refused legal assistance on numerous occasions by the relevant bodies and he had made no effort to arrange for legal representation for the hearing, which had been previously fixed for 14 October 2022. The application was refused.

9.  Ground 1 complained that the prosecution failed to call all available evidence in the voir dire, namely Customs Officer 15210. The applicant claimed that the officer would have supported his case that he did not make the verbal admission to another Customs Officer. However, Customs Officer 15210 gave evidence at trial as PW2, and it was a factual issue before the jury as to whether the verbal admission as alleged had been made. When the Customs Officer testified, he did not confirm that the applicant remained silent as he had claimed.

10.  Ground 2 concerned whether a lies direction should have been given by the judge in his summing up to the jury. It is apparent that the prosecution did not rely on lies by the applicant to strengthen its case or to prove the applicant’s guilt. There was discussion about whether a lies direction should be given, and it was accepted, on the basis on which the prosecution was to present its case, one was not necessary.

11.  Ground 3 complained about the presence of the exhibits officer in the courtroom during the voir dire. It would appear that initially the exhibits officer would not be required to testify, and he assisted the officer in charge in handling the documents and exhibits. When it became apparent that he would be required to give evidence, the officer left the courtroom. It had all been discussed with defence counsel, and no issue had been taken about the matter.

12.  Ground 4 alleged that the proceedings during a voir dire were not interpreted to him. There is no substance to this ground as interpretation was provided to the applicant throughout the proceedings in the voir dire and at trial.

13.  Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory based on the previous grounds of appeal and is therefore unsustainable.

14.  The next two grounds are the ones raised in the Joint Note and adopted by the applicant.

15.  Ground 6 complained that the judge failed to give a direction in accordance with Specimen Direction 61.3 that suspicion would not suffice and knowledge must be proved. It is true that the issue at trial was whether the applicant knew dangerous drugs were concealed in the water filter cartridges. However, whether this direction was required depends on whether the applicant was suspicious. As pointed out by the respondent, the applicant denied he was suspicious of transporting the carton boxes in his video recorded interview and testimony in court. The applicant said that he had been told by Ng Gor to bring back cartridges and that he examined the carton boxes and found cartridges inside them. There was no prominence to the notion of suspicion at trial. The applicant was cross-examined that he knew he was transporting drugs and that was the case against him. In the closing speeches of counsel and the judge’s summing up no issue was made that the applicant had suspicion that drugs were involved. In his comprehensive directions to the jury, the judge stressed that knowledge was the only basis for conviction.

16.  I do not find this ground of appeal to be reasonably arguable.

17.  Ground 7 concerned the failure of the judge to direct the jury on the applicant’s previous inconsistent statements. It was noted that the prosecution extensively cross-examined the applicant on the inconsistencies in his evidence with what he had said in his video recorded interview. It is contended that the judge should have explained to the jury under what circumstances they need to examine the issue of the alleged inconsistencies and what use, if any, they could make of them. The respondent submits, correctly, in my view, that the proposed direction was unnecessary for the following reasons. First, the judge had correctly directed the jury to ignore and disregard the applicant’s out-of-court statements if they were not sure that they had been properly taken or that the statements were true. Secondly, the inconsistencies and contradictions were acknowledged and addressed by defence counsel in his closing speech. Thirdly, the proposed direction would have been unnecessary because they only went to the applicant’s credibility. Fourthly, the judge had highlighted the defence’s submission that the applicant’s age, education level and physical condition after a long flight tended to support his credibility in relation to his out-of-court statements. Fifthly, the judge had instructed the jury to give the applicant’s testimony due allowance for his old age and the stress of facing a serious criminal charge. Sixthly, given the nature of the alleged inconsistencies and that the case was fairly straightforward, the jury would have had no difficulty assessing them if established.

18.  I am not persuaded that this ground is reasonably arguable.

19.  It follows from what I have said that the application for leave to appeal against conviction is refused.

20.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal if the Court were to come to the view that there was no justification for the renewal of his application.