HKSAR v. CHAN KAI MING AND ANOTHER

CACC 262/2019 [2022] HKCA 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 262 OF 2019 (ON APPEAL FROM HCCC NO 370 OF 2018) ______

BETWEEN

HKSAR Respondent and

CHAN KAI MING 1st Appellant

LIEW KIAN LEONG 2nd Appellant ______ Before: Hon Macrae VP, Zervos and M Poon JJA in Court Date of Hearing: 14 January 2022 Date of Judgment: 14 January 2022 Date of Reasons for Judgment: 28 January 2022 ________

REASONS FOR JUDGMENT ________ Hon M Poon JA (giving the Reasons for Judgment of the Court) Introduction The 1st and 2nd appellants stood trial in the High Court before Deputy Judge Woodcock (“the judge”) and a jury on a joint count of trafficking in a dangerous drug. They were convicted after trial by unanimous verdict and on 23 August 2019 were each sentenced to 28 years and 4 months’ imprisonment. On 10 June 2021, leave was granted by Zervos JA on a single ground which related to the judge’s comments in respect of the fingerprint evidence. At the conclusion of this appeal, we dismissed the appeal and indicated that we would hand down our reasons for so doing in due course. We now give our reasons. The prosecution case The prosecution case was that the 1st and 2nd appellants, who each entered Hong Kong from Malaysia on a visitor’s visa, jointly arranged to import into Hong Kong a parcel from Malaysia. Three bottles of chilli sauce containing 4.98 kilogrammes of a crystalline solid containing 4.87 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), with a street value of $3,456,120 were packed inside the parcel. The 2nd appellant arrived in Hong Kong on 20 March 2018 and checked into a guesthouse. Meanwhile, two parcels were arranged to be delivered to him from Malaysia. These parcels containing foodstuff arrived on 21 and 26 March

respectively. The 1st appellant arrived in Hong Kong on 1 April 2018. He met up with the 2nd appellant who assisted him to rent a room in another hotel. The 2nd appellant paid for the initial cost of hiring the room. On 3 April 2018, a parcel which was the subject matter of the present charge (“the Parcel”) was intercepted by Customs officers at Hong Kong International Airport who then conducted a controlled delivery operation that afternoon. A Customs officer posing as an employee of DHL went to the hotel (“the Hotel”) where the 1st appellant was staying. The 1st and 2nd appellants were seen to be sitting and chatting outside the main entrance of the Hotel. The 1st appellant claimed to be the consignee and acknowledged receipt of the parcel, having confirmed his telephone number. The rooms which the appellants were staying in were then searched. From the 1st appellant’s room a large number of plastic bags, an electronic scale, a cutter and a batch of rubber gloves were seized. It was found that the 1st appellant’s telephone number was on the waybill attached to one of the two cartons in the 2nd appellant’s room. Further, in the 2nd appellant’s room was a receipt of the purchase of plastic bags of the same size as those seized from the 1st appellant’s room. CCTV footage of the Hotel showed that the appellants had spent a lot of time together after the 1st appellant’s

arrival. Under caution, the appellants denied knowledge of the presence of the drugs. The 1st applicant said that he had asked for some chilli sauce and native food products to be sent to/for him to conduct a marketing survey in Hong Kong. The appellants originally claimed that they did not know each other. The 1st appellant later admitted that he knew the 2nd appellant after being shown a photograph in his mobile telephone. He explained the use for the scale and the resealable plastic bags. The 2nd appellant said that he only met the 1st appellant by chance in Hong Kong. He came to take a rest in Hong Kong and he had asked his friends in Malaysia to send foodstuff to him. It was an admitted fact that the parcel in question was forwarded by DHL from Kuala Lumpur to Hong Kong on 2 April 2018 at 4:16 pm. It was further admitted that no marks of any value were found on the drug exhibits (the drugs and the wrappers) for the purpose of fingerprint identification. The only real issue at trial was whether the appellants knew that there were drugs inside chilli sauce bottles contained in the Parcel. The defence case Both appellants elected to give evidence. The 1st appellant’s case was that he was in Hong Kong primarily to conduct a marketing survey on the viability and possibility of importing Malaysian chilli sauce to the territory. The Parcel was sent to him by a supplier at his

request. He had no idea or knowledge of the Ice inside the chilli bottles. All of the items found in his room were for handling the chilli sauce. The 2nd appellant’s case was that he was in Hong Kong on holiday. It was a pure coincidence that he ran into the 1st appellant in Hong Kong. They had a meal and chat. The cartons found in his room were previously sent to him from Malaysia by DHL and they contained food only. He knew nothing about the drugs found in chilli sauce bottles in the Parcel. The judge’s direction on fingerprint evidence In relation to the lack of fingerprint evidence attributable to the appellants, the following directions were given by the judge: “I will here mention an admitted fact that was referred to by Mr Yim. That is a fingerprint report following an examination by a fingerprint expert of the dangerous drugs and their wrappers, the dangerous drug wrappers, to determine whether any identifiable fingerprints could be found. His report concluded that no marks of any value could be identified and this is in paragraph 20 of the Admitted Facts. The fact that neither the 1st defendant nor the 2nd defendant’s fingerprints could be identified or were identified is neither here nor there. The absence of such information does not help the defendant necessarily. A lack of fingerprint evidence is a neutral factor. Where there is no fingerprint evidence it proves

nothing either way.” The single judge’s comment on the directions in respect of fingerprint evidence During the leave application hearing before the Single Judge, concern was raised as to whether the judge, by the above directions, may have inadvertently removed from the jury a relevant consideration as to whether the appellants knew that there were drugs in the Parcel in support of their defence of lack of knowledge. 1st appellant’s ground of appeal and submissions Mr Jeremy Cheung, on behalf of the 1st appellant, argued that by directing the jury that the lack of fingerprint evidence was neutral, “proves nothing either way” and “does not help the defendant”, the judge watered down an option which could have gone to the issue of whether the 1st appellant was a knowing participant in the trafficking, especially since there was no evidence linking the 1st appellant to the drugs and the wrapping. It was submitted this was a factor which could have tipped the balance in favour of the 1st appellant and so there was a misdirection. Mr Cheung went further to submit that it was incumbent on the judge to direct the jury that the absence of fingerprints attributable to the appellant could be a fact relevant for their consideration on the issue of knowledge. However, he conceded that counsel for the 1st appellant at trial did not invite the jury to draw an inference favourable to the

appellant from the absence of fingerprints, nor was the necessity for such a direction drawn to the attention of the judge after her delivery of the summing-up. 2nd appellant’s ground of appeal and submissions Mr Wong Hay Yiu, counsel for the 2nd appellant, adopted the submission of Mr Cheung and submitted that the absence of fingerprints on the wrappings was especially relevant because the prosecution suggested in their closing speech that it was no coincidence that the 2nd appellant received similar parcels from Malaysia weeks before the arrival of the 1st appellant. The jury were thus invited to infer that the two appellants were already involved together when they were in Malaysia. Therefore, in considering whether they were knowing participants, an aspect of the factual matrix for the jury to consider would be whether they were physically involved in the packaging to the drugs. The lack of fingerprints on the wrapping was something which the jury should consider and give such weight to as they saw fit. The judge erred in withdrawing a fact which might have supported the 2nd appellant’s case of lack of knowledge from the jury, thus rendering the conviction of the 2nd appellant unsafe and unsatisfactory. Respondent’s submissions Mr Derek Wong, SPP, submitted that the parcel was never opened up upon delivery and the appellants had never come into physical contact with the

drugs and wrappers after its arrival in Hong Kong. The scenario of the present case was different from that where the absence of fingerprints was relied on as evidence which supported the defence case, and which required the judge to give an appropriate direction. It was further submitted that there was ample circumstantial evidence such as the airway bill and telephone contacts in the appellants’ mobile telephones for the jury to draw the inference as to their knowledge, and thus no prejudice was suffered by them. Discussion This appeal turns on a very narrow issue, that is, whether the judge erred in the way she gave the directions relating to the lack of fingerprints. It is recognized in the Specimen Directions that there is a wide variety of circumstances by which this issue may present itself. The starting point is that “the absence of DNA and fingerprint evidence to show that a defendant has handled a vital exhibit is a neutral fact”. In the present case, the Parcel arrived in Hong Kong on 3 April 2018, having been forwarded by DHL on 2 April 2018. The 1st appellant arrived in Hong Kong on 1 April 2018, before the parcel was sent from Kuala Lumpur. The 2nd appellant arrived two weeks before that, on 20 March 2018. This was never a case where the appellants were alleged to have physically handled the drugs. The jury were asked to infer from the circumstantial evidence that

the two appellants were knowing participants in the importation of the drugs from Malaysia to Hong Kong and they played their role by physically coming to Hong Kong to receive the Parcel containing the drugs. Contrary to Mr Wong’s submission, the prosecution never suggested that the two appellants were involved in the packaging of the parcel or the drugs. What counsel for the prosecution actually said in his closing speech was this: “The prosecution don’t have direct evidence that they were responsible for packing these parcels, so we can’t say that through direct evidence they knew what they were putting in the parcel before posting it to themselves in Hong Kong, as an example. That might be a scenario. It wasn’t in this case.” He then went to say: “But the prosecution do point to what’s called circumstantial evidence, small pieces of evidence that lead you inevitably to the only reasonable conclusion or inference that they must have known there was dangerous drugs in that parcel, so you must look at the circumstantial evidence, all these threads that point to one and only one reasonable conclusion, they must have known…” Reading those paragraphs in context, not only was there no suggestion that the appellants were responsible for packing the parcels, the jury were invited to look to circumstantial evidence in the case to draw the inference of knowledge against them. Given

that the Parcel was sent from Malaysia when the two appellants were already in Hong Kong, the extent of either of them handling the drugs and then arranging for the drugs to be packaged and sent to the 1st appellant after he had arrived in Hong Kong, was very remote. This point was never made by either defence counsel in their closing submissions; what counsel for the 1st appellant did was only to repeat the admitted facts. Instead, there was evidence which pointed to someone else doing the packing and sending. Furthermore, the judge, by saying “a lack of fingerprint evidence does not help the defendant necessarily”, was not withdrawing that piece of neutral evidence from the jury altogether. This direction clearly meant that this evidence may or may not help the appellants. In the circumstances of the present case, it was not necessary for the judge to go on to direct the jury that the lack of fingerprints on the wrappings of the drugs might support the appellants’ case of lack of knowledge. There was no misdirection in this case, and as counsel for the 1st appellant conceded before us, there was other circumstantial evidence from which the inference could be drawn as to the appellants’ knowledge. For the above reasons the appeal was dismissed. (Andrew Macrae) Vice President (Kevin Zervos) Justice of Appeal (Maggie Poon) Justice of Appeal Mr Derek Wong, SPP of the Department of Justice, for the respondent Mr Jeremy Cheung, instructed by Wong & Co, assigned by Director of Legal Aid, for the 1st appellant Mr Wong Hay Yiu, instructed by Keith Lam Lau & Chan, assigned by Director of Legal Aid, for the 2nd appellant