HKSAR v. CHOW KING KONG

CACC 41/2024

[2025] HKCA 607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 41 OF 2024

(ON APPEAL FROM HCCC NO 4 OF 2022)

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J U D G M E N T

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1.  On 30 January 2024, following a trial before Deputy High Court Judge Woodcock (as she then was) (the judge) and a jury, the applicant was convicted of one count of conspiracy to traffic in a dangerous drug (Count 1) and one count of possession of a dangerous drug (Count 2).[1] It was alleged in Count 1 that the applicant conspired with SHEK Kai-fat (SHEK) to unlawfully traffic in dangerous drugs between 15 and 18 September 2020, namely 99,618.50 grammes of a solid containing 3,437.08 grammes of ketamine; and in Count 2 that he had in his possession a dangerous drug on 19 September 2020, namely 0.53 gramme of herbal cannabis^[2]. On 31 January 2024, he was sentenced to a total term of 20 years’ imprisonment.

2.  On 19 February 2024, the applicant applied for leave to appeal against conviction on both counts.  At the leave hearing, he appeared in person, having had legal aid refused on 22 August 2024.

The prosecution case

3.  It was not in dispute that, on 11 September 2020, police officers had under observation seven barrels at the roadside of No. 35 Tai Lin Pao Road, Kwai Chung, which an unknown man initially watched over.  A transportation worker named Chiu Chi-wai (PW3) received an order to collect the barrels for storage and was informed that they contained an inflammable substance.  PW3’s colleague, Ngan Wing-nam (NGAN), collected the barrels from the roadside, which were unguarded at the time.  NGAN transported four barrels to PW3 at Tsz Lok Estate in Tsz Wan Shan, which were later transported by PW3 to the Ground Floor Loading Area, Telford Plaza 2, Telford Gardens, Kwun Tong.  The three remaining barrels were stored at his girlfriend’s flat at Room 1301, Bik Lai House, Yau Lai Estate, Yau Tong.  PW3, NGAN and NGAN’s girlfriend were intercepted and released by the police upon investigation.  The seven barrels were found to contain the total quantity of ketamine as particularised in Count 1 (six barrels contained powder, four of which contained ketamine, and one barrel contained liquid).[3]

4.  On 15 September 2020, the police officers conducted a controlled delivery operation involving the barrels, which were substituted with imitation powder and liquid[4]. PW3 agreed to participate in the operation by delivering the barrels after receiving a call from a person named “Ah Wai”.  He was accompanied by DPC 5111 (PW2), disguised as a passenger, to Pak Tin Estate in Sham Shui Po, where the applicant received the delivery[5]. The applicant transported the barrels to Fu Tin House in Pak Tin Estate with SHEK’s assistance, and moved them to his residence at Room 408, 4^th Floor, Fu Tin House (the flat) by himself, after which he left the flat in a vehicle driven by SHEK.[6] On 16 September 2020, the applicant transported the barrels to Mow Hing Industrial Building, No. 205 Wai Yip Street, Kwun Tong[7] (the industrial building).  On 17 September 2020, police officers were stationed outside the industrial building, keeping it under observation.[8] 

5.  On 18 September 2020, the applicant went to Unit B507 on the 5^th Floor of the industrial building (Unit B507), where he stayed for about 12 minutes before he was intercepted and arrested.  He stated under caution that the barrels contained dangerous drugs “Ice” and he was asked by SHEK earlier to place them in Unit B507.  The cautioned statement was confirmed in a post record taken by the arresting officer, DPC 12745 (PW8).[9]

6.  On 19 September 2020, the police searched Unit B507, where they found the seven barrels, a CCTV camera, and a router.[10]  The police also searched the applicant, and found in his possession a key and a rental receipt, which were both related to Unit B507, and a mobile telephone.[11] He was then escorted to the flat, where the police found in his bedroom a small box containing a small glass bottle containing the herbal cannabis particularised in Count 2.[12] He stated under caution that the cannabis was for his own consumption, which was confirmed in a post record taken by PW8.[13] 

7.  In two subsequent cautioned video recorded interviews (VRIs), the applicant stated the following:[14]  

(i)     He had known SHEK as an old friend for about 12 years as they grew up together in Pak Tin Estate[15].

(ii)    On 15 September 2020, SHEK asked him to store the barrels at the flat, which SHEK claimed to contain paints, because the warehouses were closed due to a black rainstorm warning.  He agreed,  collected the barrels from PW3, and transported them with SHEK on two trolleys to Fu Tin House.  He then took the barrels to the flat by himself and sent SHEK a photograph.  Afterwards, he got into SHEK’s vehicle registered VY3839, which SHEK drove to Cheung Sha Wan, and was given HK$1,500 cash by SHEK as a birthday gift.  He suspected something was wrong after returning home[16].

(iii)   On 16 September 2020, after questioning SHEK about an odd smell from the barrels and their contents, SHEK informed him they contained dangerous drugs “Ice”.  When he asked SHEK to remove the barrels, SHEK gave him HK$1,000 cash, a rental receipt, and a key to Unit B507.  SHEK asked him to place the barrels there, which he did.  SHEK also told him that if he were arrested, he could say the barrels belonged to SHEK.[17] He had kept the key since then and had used it on that day and 18 September 2020.[18]

(iv)   On 18 September 2020, SHEK asked him to install a CCTV camera at Unit B507 for a reward of HK$500 and drove him to the industrial building.  SHEK gave him a bag containing a CCTV camera, a router and a screw driver.  He then went to Unit B507 and installed the camera.[19]

(v)    When questioned about why he assisted SHEK despite knowing that the barrels contained a dangerous drug, he said he was merely helping a friend.  SHEK offered him money and threatened him that his family would be in danger if he refused.[20]  He explained that SHEK instructed him to install the CCTV camera because SHEK was afraid that someone might take his goods or the police would “sweep” the place.[21]

(vi)   Regarding the herbal cannabis found in Unit B507, the applicant said he had tried cannabis two years before when he was in Holland.  He purchased the herbal cannabis from a friend named “Ah Fai” for $500 in a park in Sham Shui Po about five months ago.  He occasionally smoked it, and kept the glass bottle in a box in his bedroom to hide it, from his family.  He said he did not habitually consume dangerous drugs.[22]

8.  The prosecution called an expert (PW10) to testify regarding the valuation of the drugs involved.  He was of the opinion that the street value of 99,618.50 grammes of the solid seized from the brown powder in the four barrels was about HK$48 million.  He based the valuation on the purity of ketamine when sold to users, which he accepted in cross-examination was on average about 81 per cent.  However, the actual content of ketamine narcotic from the solid seized was 3437.08 grammes, which constituted a purity of about 3 per cent.  When this was put to the expert, he disagreed with the defence calculation that the total quantity of ketamine narcotic only had a value of HK$1.8 million.[23]

9.  The prosecution case was that the applicant and SHEK had an agreement to traffic in the barrels containing the ketamine in Count 1, and they were both involved in the collection of the barrels on 15 September 2020 in Pak Tin Estate.  They arranged for the barrels to be moved and stored in Unit B507 on 16 September 2020 and arranged for a CCTV camera to be installed in the room.  The applicant dealt with the barrels physically, whilst SHEK either gave instructions, made arrangements or drove him around.[24]

The defence case

10.  The applicant elected to give evidence but called no witnesses. His case was that he did not know about the drugs inside the barrels and denied he had any agreement with SHEK to traffic in the drugs as alleged in Count 1.  He maintained that his admissions in the cautioned statements and interviews were made under force, threat and inducement by the police.[25]  In a voir dire, the applicant challenged the admissibility of his out-of-court statements, which the judge ruled were admissible.[26]

11.  The applicant testified in respect of Count 1 that he had known SHEK, who was his neighbour and close friend until they quarrelled about SHEK’s girlfriend a year before the offence, after which he had deleted all WhatsApp messages with SHEK due to the argument[27].  He said that SHEK called him “out of the blue” on 15 September 2020 to store the barrels at his flat overnight.[28] He explained that he had agreed to help SHEK because SHEK claimed they contained decoration materials.  He did not suspect SHEK as he knew SHEK’s father was a decoration worker[29] and SHEK had previously used his address for deliveries, trusting that they would not involve anything illegal.[30]  He said SHEK gave him HK$1,000 “lai see” for his birthday and HK$500 for dinner.[31]  He took photographs of the barrels throughout their transportation between 15 and 18 September 2020 and sent them to SHEK, as it was his habit from his previous work as a warehouse keeper.[32]  On 16 September 2020, SHEK gave him a key, rental receipt, and $1,000, asking him to move the barrels to the address on the receipt, access the unit with the key, and lock them inside.  He arranged a GoGoVan to transport the barrels from Pak Tin Estate to the industrial building.[33]  On 18 September 2020, he called SHEK intending to return the key, but instead agreed to help SHEK install a CCTV camera in Unit B507.  SHEK drove him to the industrial building and left.  SHEK asked him to call once the installation was completed, after which he was arrested.[34] 

12.  In relation to Count 2, the applicant claimed that before the police searched the flat, he told PW8 there was cannabis which belonged to his girlfriend and DPC 13603 (PW1) agreed not to charge her.  However, after seizing the herbal cannabis, the police charged him instead, and scolded him when he asked them to charge his girlfriend.[35]

13.  The applicant also claimed that he had not made the confessions after his arrest.  He had been assaulted, threatened, oppressed and induced by the police officers into cooperating and signing the post-recorded statements in the notebook and the Notices to Persons in Custody[36].  He said he tried to indicate the alleged police improprieties by signing messily with his non-dominant hand wherever PW8 told him to sign in the notebook, without knowing what PW8 had written.[37]  The police coached him to give incriminating answers in both of his VRIs.[38]  He said he had added a hidden message at Counters 752-782[39] to indicate he was actually threatened by police, not SHEK, but was scolded for doing so after the VRI.[40]

The grounds of appeal

14.  The applicant has made a series of complaints against his conviction in his notice for leave to appeal against conviction filed on 19 February 2024, and subsequent written submissions, filed on 10 February and 25 March 2025.  The applicant’s grounds can be summarised as follows. 

15.  First, he contends that the judge’s summing-up was biased and unfair.  He mainly directs his criticism to the judge’s directions to the jury in relation to the elements and the issues regarding Count 1, the circumstantial evidence and the drawing of inferences.  He also questions the written handout the judge provided to the jury on these matters.

16.  The judge’s summing-up was fair and balanced. She gave a comprehensive overview of the evidence, particularly the applicant’s evidence and the allegations that he made against the police, claiming that they had framed him.  She also directed the jury correctly on the legal and factual issues.  It was quite in order for the judge to give the jury a written handout setting out the directions in respect of the elements and issues of the trafficking offence: HKSAR v Yano Hiraki [41].

17.  Secondly, he argues that the judge erred in ruling the post-recorded statements admissible, and wrongly summarised the defence case, particularly in respect of the voluntariness of his confession in the police notebook.  He further alleges that the judge erred in directing the jury that there was an inconsistency between his evidence at trial and the voir dire, which undermined his credibility before the jury.

18.  The applicant, in his evidence, alleged that he was framed by the police, and the issue of his admissions under caution was central to his defence at trial.  This was the focal point in challenging the police evidence, which the judge fairly summarised in her summing-up to the jury.  The judge gave a detailed summary of the applicant’s evidence, highlighting his account of the events and how the police mistreated him. During cross-examination, the applicant was asked about previous inconsistent statements that arose from his evidence in the voir dire.  However, this was properly addressed by the judge in her summing-up, instructing the jury not to speculate and that there are circumstances when a witness has given evidence on a previous occasion.[42]

19.  Thirdly, he complains that the judge incorrectly summarised his evidence in cross-examination regarding the storage of the barrels.

20.  As already noted, the judge gave a comprehensive summary of his evidence, including matters that have been raised during cross-examination. The evidence concerning the storage of the barrels was mainly based on surveillance evidence, which was not in dispute.

21.  Fourthly, he contends that the police officers in the conduct of the controlled delivery operation made mistakes, and his counsel did not pursue these matters at trial.  The prosecution presented evidence of the controlled delivery by PW3.  He has not provided any particulars as to what these mistakes were and how they prejudiced him in any way.

22.  Fifthly, the applicant complains that his counsel failed to challenge certain evidence and was flagrantly incompetent.  His complaints are general in nature and mainly relate to his disagreement with counsel’s approach and style in conducting the defence case.  At the hearing, he alleged that his counsel should not have advised him to agree the Admitted Facts and ignored his suggestions to pursue the mistakes made by the police during the controlled delivery operation.  The defence case was properly put before the jury and obviously had a bearing in that he was convicted by a majority verdict of 5 to 2.  The Admitted Facts were produced and read out in open court. Consequently, he would have been aware of them, and they would not have been admitted without his approval.  The facts set out were uncontroversial and had been established through independent evidence.  He also complains that his counsel did not address the alleged inconsistencies between his evidence and what he had said previously.  Most of the inconsistencies had been acknowledged by the applicant in his evidence, and he provided an explanation[43].

23.  The applicant was reminded that if he sought to advance counsel incompetency as a ground of appeal, a waiver of legal privilege in respect of the trial proceedings would be required, and his trial counsel would be invited to file an affirmation in response to his allegations.  The applicant ultimately abandoned his complaints alleging the incompetency of counsel in the course of the hearing.

24.  Sixthly, he argues that prosecuting counsel’s closing address was misleading and the judge failed to address this matter before the jury.  The basis of his complaint against prosecuting counsel’s closing address is unclear.  Prosecuting counsel canvassed the evidence in his address and invited the jury to draw an irresistible inference of guilt against the applicant.

25.  Putting aside the applicant’s admissions under caution, the surveillance evidence, which was not in dispute, was incriminating and had him transport and store the barrels containing the dangerous drug in a room, where he also installed a CCTV camera.  Before transporting the barrels to the room, he had them stored at his home overnight.  There were also the messages between him and SHEK, which he had deleted, regarding the transportation and storage of the barrels.  There is no substance in his complaint that there was insufficient evidence to convict him of the trafficking offence.

Conclusion

26.  I am not persuaded that the applicant’s complaints are reasonably arguable, and leave to appeal his conviction is refused.

[1] Appeal Bundle (AB), 70.

[2] AB, 1-2.

[3] AB, 10-11, 14-16 and 22F-23P.  See also Exhibits P1, P3, P5, P7, P13, P15 and P17.

[4] AB, 24C-J.  The substitution was carried by the exhibit officer DPC 13603 (PW1).

[5] AB, 24K-25C.

[6] AB, 24S-25J and 26I-O.

[7] AB, 25N-26H.

[8] AB, 18-19.

[9] AB, 27R-S and 92.

[10] AB, 27M-N.

[11] It was an admitted fact that the police found in the applicant’s possession these items upon his arrest at Unit B507 on 18 September 2020: AB, 12, at [7]-[8].

[12] AB, 29I-O.

[13] AB, 29P-Q and 110.

[14] AB, 243-307 and 332-347.

[15] Counters 20-28: AB, 247.

[16] Counters 68-170: AB, 250-257.

[17] Counters 171-188 and 218-278: AB, 257-259 and 261-266.

[18] Counters 779-786: AB, 304-305.

[19] Counters 338-408: AB, 270-275.

[20] Counters 749-756, 771-772 and 796-800: AB, 302-304 and 306.

[21] Counters 345-350: AB, 270.

[22] Counters 11-118: AB, 336-346.

[23] AB, 34F-35F.

[24] AB, 21B-H.

[25] AB, 21H-M and 379O-T.

[26] Respondent’s First Written Submission, at [12].

[27] AB, 36F-H and 43G-S.

[28] AB, 36H-O.

[29] AB, 43I-K.

[30] AB, 43L-R.

[31] AB, 37K-M.

[32] AB, 45C-K.

[33] AB, 37M-38D.

[34] AB, 38C-M.

[35] AB, 41A-J.

[36] AB, 72-73, 75-76 and 78-79.

[37] AB, 38M-40D.  See also Defence’s Closing Address: AB, 381P-T.

[38] AB, 38M-40K and 42N-T.  See also Counter 220: AB, 261 and Defence’s Closing Address: AB, 381U-382K.

[39] AB, 302-304.  See also AB, 381U-382K.

[40] AB, 40L-T.

[41] HKSAR v Yano Hiraki [2023] 4 HKLRD 786, at [18]-[21].

[42] AB, 41M-42I.

[43] AB, 41F-42D.