HKSAR v. NG CHUN WING

CACC 424/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2015

(ON APPEAL FROM HCCC NO. 1 OF 2015)

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J U D G M E N T

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1.  The applicant was charged with one count of trafficking in a dangerous drug, namely 20.05 grammes of a crystalline solid containing 19.58 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and one alternative count of being a person in charge permitting premises to be used for the unlawful storage of a dangerous drug, contrary to section 37(1)(a) and (2) of the same Ordinance (Count 2).

2.  Having pleaded not guilty to both offences before Deputy Judge D’Almada Remedios and a jury, the applicant was, on 27 November 2015, acquitted of Count 1 but convicted of Count 2.  He was sentenced to 3½ years’ imprisonment in respect of Count 2 on the same day.  On 17 December 2015, the applicant filed a Notice of application for leave to appeal against his conviction.

The prosecution case

3.  On 5 September 2013, police officers intercepted the applicant as he was coming out of Room B4, 1^st Floor of Wah Sun Building in Mong Kok (the “Premises”).  On being searched, nothing illegal was found on the applicant’s person. However, a search of the Premises revealed a quantity of dangerous drugs, later found to be 20.05 grammes of a crystalline solid containing 19.58 grammes of methamphetamine hydrochloride (commonly known as “Ice”).  The “Ice” was lying on top of the desk in the Premises, contained in four separate plastic bags together with electronic scales and other small plastic bags.  HK$10,000 was also found in the bedroom.[1]  It was alleged that under caution, the applicant had said that he “only helped someone to bring drugs ‘Ice’ ”, and asked for a chance.[2]  This was recorded immediately afterwards by the arresting officer in his notebook, read to the applicant and signed by him.[3]  A post-record was then made, to which the applicant added that the HK$10,000 belonged to his live-in girlfriend.[4]  The applicant was eventually allowed to call his wife, during which he asked her to call a lawyer.[5]

4.  The prosecution case at trial was that the applicant was living at the Premises as he had paid the rent on three or four occasions, and had the keys to the Premises.[6] The landlady of the Premises, a Madam Lo, testified that it was the applicant who made payments directly to her, and she would speak to him if there were any need to discuss the utilities of the premises.  She believed that he was the tenant.[7]  A screen which appeared to be a CCTV monitor was also found to be activated in the premises.[8]  Given his admissions, the prosecution case was that the applicant had been trafficking in a dangerous drug.

5.  The estimated retail value of the drugs in question was HK$12,671.[9]

The defence case

6.  The applicant elected to give evidence.  The defence case at trial was that the drugs, scales and plastic bags were found underneath the desk inside a folder, and that the applicant had no idea that the drugs were in the flat.  The applicant said he was married and living with his two children in Tin Shui Wai.  He was in receipt of Comprehensive Social Security Assistance (CSSA) but worked as a decorator on a casual basis.[10]  He was a visitor to the flat and only assisted the occupier and his friend, Ah Yee (Madam Ngai Yee), to hand over the rent, which she would give him.  The actual tenant of the Premises was Yip Ka-ho, who was named as tenant in the Tenancy Agreement.[11]  The applicant said he was at the Premises on that day to help Madam Ah Yee change the water of the fish tank.[12]  He would also occasionally do odd jobs or renovation work for Madam Ah Yee for free.[13]  He had the keys to the Premises, but not to his flat in Tin Shui Wai.[14]

7.  The applicant said that when the officers intercepted him, he was strip-searched.  During this process, his mobile telephone had rung and he told the officers he was supposed to be meeting a friend at a dessert shop.  Suspecting that the friend might be connected with dangerous drugs, the officers left the Premises to locate the applicant’s friend.  When they failed to find anyone, the sergeant told the applicant that he was wasting his time and he would “frame [the applicant] to death”.  The officers then searched the Premises, where they found the drugs underneath the desk in a black folder.  Upon arrest and caution, all he had said was “I don’t know, I want to call a lawyer”.  The admission attributed to him had been fabricated by the police, and he was not allowed to talk to a lawyer until after he had signed the notebook and the post-record.[15]  He signed the post-record without reading it, and the admission was not read to him by the officer.[16]

8.  The applicant did not pay attention to the screen which was apparently a CCTV monitor, but had assumed it was on.[17]

Summing-up

9.  In her summing-up, the judge began by explaining the alternative counts on the indictment.  She then directed the jury that the principal issue in respect of Count 1 was whether the drugs in the flat were in the applicant’s possession.[18]  As for Count 2, the judge directed that[19]:

“In the 2nd alternative charge - remember, if you find him not guilty of the 1st - the issue is similar, in that you must be satisfied that those drugs were in his possession, that he had knowledge that they were dangerous drugs and that he was the person in charge of the premises and, as the person in charge, he permitted the drugs to be stored in the flat.

...

Let me turn now to the alternative charge. I remind you again that you only consider this charge if you find the prosecution has not proved the 1st charge of trafficking. The prosecution must still satisfy you that the defendant was in possession of the drugs, he had knowledge that they were drugs, but what they must satisfy you further in this case is that he was the person in charge of the premises, and he permitted the storage of those drugs.

In law, someone can be considered as the person in charge if he is in charge of the premises either by running, organising or planning the premises.  Examples of a person in charge could be someone who pays rent to make sure that that premises can still operate.  Or it could be someone who is charged with making sure that all the necessary utility bills are paid for, for the running of the premises - ‘utility’ being water, electricity, gas.  The person in charge need not exercise control over the premises, such as the person in charge may not say who can enter, who can be excluded.”

10.  The judge also directed the jury to consider the circumstances in which the post-record was made[20]:

“Now, consider these circumstances when you consider whether the statement was in fact made by the defendant, and if you are satisfied that the statement was made, you must be satisfied that what he said is true. If you think that the statements were signed by the defendant in circumstances where the police officers acted improperly in their conduct - that is what the defendant alleges, the improper conduct - if you think what the defendant says is true, or may be true, then you must ignore the admission, that is the verbal admission, and you must also ignore the record in the notebook, P16. Obviously, members of the jury, that is all a matter for you to decide.

So if you are sure the defendant made the admission and they were not obtained in the way the defendant says they were, you must nevertheless decide whether that admission is true.  If, for whatever reason, you are not sure that the admissions are true, you disregard it.  On the other hand, if you are sure it was made and it was true, then you can rely on it.”

Grounds of appeal against conviction

11.  In his Form XI, the applicant states that he “did not know there were dangerous drugs in the room” and that he “did not rent or reside in the unit”.

12.  In a letter to the court dated 16 May 2016, the applicant further submits the following grounds:

(i) The 1^st witness statement made by the landlady, Madam Lo, never mentioned that the flat in question had any issues of arrears or delays in the paying of rent, and the use of, and bills for, water and electricity.  Her statement had mentioned that the flat was leased to Yip Ka-ho and Ng Chun-wing, when in fact it was formally leased to Yip Ka-ho;

(ii) According to the 2^nd witness statement of the landlady, the rent had been properly paid for in the first two or three months, and there were receipts for the water and electricity bills; the issues about arrears and delay in rent, and the use of, and bills for, water and electricity simply never occurred;

(iii) He questioned how Madam Lo had come to know his full name in her witness statements;

(iv) On the material day, he went to help his friend Ah Yee change the water in the fish tank, as shown from the pebbles on the toilet sink and in a water bucket at the Premises;

(v) The dangerous drugs were laid out on the table by the police; however, they had originated from a black envelope found under the table.  He had no idea there were drugs or apparatus in the flat; and

(vi) The image on the television screen was a no-signal image and not a CCTV monitor.

13.  The applicant has further supplemented and explained these grounds before me this morning.  Essentially, he submits that the witness statements of Madam Lo were at variance with her evidence before the jury.  When I pointed out that these matters do not appear to have been canvassed with the witness or taken issue with in the applicant’s own evidence, he accepted that they had not been cross-examined upon but that was because he was unable to hear Madam Lo’s evidence, given that she spoke very softly.  Therefore, he was disadvantaged in discussing and, where necessary, refuting her evidence with his counsel.

The respondent’s submissions

14.  Mr Daryanani, SPP, on behalf of the respondent, submits that there was no dispute that the police seized the “Ice” at the Premises on the material day, although there was an issue as to where it was found.  He argues that by acquitting the applicant on Count 1, the jury obviously did not place full weight on his alleged admission.  However, it was still open to the jury, as the finders of fact, to infer from the evidence of Madam Lo that the applicant was guilty of Count 2 because he was the person in charge of the Premises, who had permitted them to be used for storing dangerous drugs.  He points out that being in charge of premises does not mean that the applicant needed to be the formal tenant in a tenancy agreement.  The judge’s directions in law were correct on the issue.[21]

15.  In respect of grounds 1 and 2, the respondent submits that it was an admitted fact that the tenant was Yip Ka-ho. However, the prosecution case was that the applicant was the one in charge of the Premises.  As for the allegations that Madam Lo’s evidence conflicted with her prior witness statements, that was a matter for cross-examination before the jury, not for complaint before the Court of Appeal.  In any event, there was no dispute that the applicant had physically paid over the rent to the landlady.[22]

16.  In respect of Ground 3, Mr Daryanani acknowledges that there was no mention in either the closing speeches or the summing-up of whether the landlady knew or did not know the full name of the applicant.  That was perhaps because the point was a very minor one and had no bearing on the case at trial, and certainly no bearing on the appeal, at all.

17.  As for Grounds 4 and 5, these were factual matters which formed part of the defence case and were for the jury to evaluate and resolve.

18.  In respect of the supposed CCTV monitor, the respondent submits that the defence at trial had used the point to their advantage by suggesting to the jury that even if “at its highest, it was some kind of CCTV image”, the applicant would not have been so incautious as to walk straight into police officers outside the apartment; particularly when the dangerous drugs were exposed on the desk inside the Premises.[23]  The judge seems to have assumed that the screen was a functioning CCTV image in her summing-up.[24]  Whatever it was, the jury had been given the general direction that they must not speculate.[25]

19.  As a result, the respondent submits that the applicant has failed to demonstrate that his conviction was unsafe or unsatisfactory, and the application should be refused.

Consideration

20.  All of the applicant’s complaints are factual matters.  The real and only issue in respect of Count 2 was whether the applicant was in charge of the Premises and had permitted them to be used for storing dangerous drugs in accordance with the legal directions of the judge.  That was a matter of inference to be drawn from the evidence as the jury found it to be.  On the applicant’s own account, he accepted that he had indeed paid rent to the landlady.  He explained the circumstances in which that had come about: it was a matter for the jury to evaluate his explanation.

21.  As for perceived previous inconsistent statements by the landlady in her witness statements, they were matters for cross-examination at trial, not for argument on appeal.  In relation to the further point made to me this morning concerning the witness statement of an estate agent, this particular witness was not called to give evidence by either side and it is not appropriate to cite this potential evidence now.

22.  I cannot see any basis for the suggestion that the jury either wrongly relied on or ignored evidence on the essential issue of whether the applicant was in control of the Premises.  This was classically a matter for the jury and I can see no error in the judge’s summing-up on this issue or the law which applied to it.  The inferences drawn from the evidence were matters for the jury, provided they drew them in accordance with correct legal directions on the drawing of inferences; and I can see no errors in those directions.

23.  The only matter that has given me any concern is whether or not the judge should have assumed (if that is what she did) that the screen in the Premises was a CCTV monitor.  Arguably, it might have been better if she had directed the jury to ignore this matter altogether and not to speculate about it, since it was not established with any certainty by evidence.  On the other hand, the defence did make a fair point that if it was a CCTV monitor, the applicant would not have behaved as he did.  Indeed, the thrust of the applicant’s submissions before me this morning is that he would not have left the apartment and walked into police officers outside the Premises, if it was a properly functioning CCTV monitor: in furthering that submission, he appeared at one point to be accepting that it was a functioning CCTV monitor.  When I pointed that matter out, he retreated from that acceptance.

24.  However, whatever the position, in the overall scheme of the directions in the summing-up and the issues before the jury, I do not see this as particularly important point either way.  Besides, the jury had been given a general direction not to speculate.

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