HKSAR v. MAK CHEUK KIT

CACC 305/2018 [2019] HKCA 1188

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) ____

BETWEEN

HKSAR Respondent and MAK Cheuk-kit (麥卓杰) Applicant ____ Before: Hon Anthea Pang J in Court Date of Hearing: 16 October 2019 Date of Judgment: 23 October 2019 ____

J U D G M E N T ____ Introduction On 28 September 2018, the Applicant was convicted of one count of trafficking in a dangerous drug after a trial before Deputy District Judge Bernard Chung (“the judge”). Upon conviction, he was sentenced to a term of 5 years and 6 months’ imprisonment. On 10 October 2018, the Applicant filed a Notice of Application for leave to appeal against conviction. The Prosecution Case The prosecution case was built upon circumstantial evidence and most of the prosecution evidence led at trial was not challenged by the Applicant. Briefly, in the early hours of 9 November 2016, when a few uniform police officers were conducting mobile patrol in Yuen Long, they noticed 2 private cars, one Mercedes bearing registration number RM984 and one Toyota Camry bearing registration number UD9633, parking on Tai Lee Street with a man standing in between the cars. When the officers stopped their police vehicle next to RM984, which was the car in the front of the two vehicles, PW1, a police sergeant, noticed a male X alighting from the driver seat of UD9633. The male then ran away. Another police officer went to look for X but in vain. Later, the police made enquiries with the man standing in between the cars and the female passenger of RM984. They also conducted a search of RM984 but reportedly, there was nothing suspicious. There was, at the time, no one

on board UD9633. When the police searched the car, they found 111 small plastic bags containing a total of 17.7g of cocaine (with an estimated street value of about HK$24,000) in the accessory compartment under the armrest on the left of the driver seat. Moreover, 5 stacks of cash in the total sum of about HK$160,000 were found in various places of UD9633. There was also a black-coloured shoulder bag put on the front passenger seat. Inside this shoulder bag, a number of documents bearing the Applicant’s name were found. They included a HKID card, a HK driving licence, a China Re-Entry card, an ATM card and a student card. Other items like an Octopus stored-value card, a carpark card, membership cards, an ESSO Smile card and 3 paper amulets were also found inside the shoulder bag. In addition, a set of false vehicle number plate HE4765 was found on the floor of the front passenger seat and 3 mobile phones were found at different locations inside UD9633. In respect of the owner of UD9633, the parties admitted that it was registered in the name of the Applicant’s mother. There was a further admission that the Applicant was in Hong Kong at the time of the incident. About 10 months after the incident, a police officer encountered the Applicant while on patrol in Yuen Long in the small hours of 20 August 2017. When asked to produce his identification document, the Applicant

immediately turned and ran away but he was stopped after a pursuit. The police found no identification document on the Applicant and when asked to produce his identity card, the Applicant said he had lost it. The Applicant was then arrested and taken back to the police station. At the station, buccal swabs were taken from the Applicant for DNA analysis. The result was that for the mixture of DNA samples obtained from the steering wheel of UD9633, they came from at least two persons with the Applicant being one of the probable donors. The Defence Case The Applicant chose not to testify but he called one Madam Wong to give evidence. Briefly, Madam Wong told the court that her deceased husband, who committed suicide on 14 November 2017, was a drug addict and had previous convictions for trafficking in dangerous drugs. The couple knew the Applicant and had spent time with him. She remembered that when her husband was still alive, he had, on several occasions, drove her around in a Toyota car which was similar in colour and model to UD9633. Madam Wong could not remember the car registration number but she said that she had seen large amounts of banknotes inside the car. The Issues at Trial The judge identified the issues as follows: Whether the person X was in possession of the dangerous drugs in question for trafficking; and Whether the Applicant was this person X. The Judge’s

Analysis After reminding himself that the present case was one in which the prosecution relied mainly, if not exclusively, on circumstantial evidence, the judge first dealt with the issue of whether X was trafficking in the dangerous drugs in question: “42. The offence occurred at around 4:13a.m. 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.” Having found himself satisfied that X was trafficking in the drugs, the judge then dealt with the question of whether the Applicant 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 Grounds of Appeal Mr Oderberg for the Applicant originally advanced three grounds of appeal. At this hearing, he confirms that he now only relies on the following two grounds: There was no or insufficient evidence to prove that the Applicant was X; and Even if the court could be sure that the Applicant was X, there was no or insufficient evidence to prove that the Applicant knew of the presence of the drugs concealed in the accessory compartment and that he possessed the drugs for the purpose of trafficking. In particular, Mr Oderberg complains that there was simply no evidence that the Applicant knew that his personal items were on board UD9633 which knowledge was the basis of the “abandonment theory”. Further, Mr Oderberg complains that, without giving himself the necessary directions in relation to the use of the flight evidence, the judge relied on it as the only evidence to find that X must have been in knowing possession of the drugs found in UD9633 and that X was using UD9633 as a platform for trafficking in those drugs. In respect of the judge’s conclusion that the Applicant must have been X, Mr Oderberg submits that the judge had wrongly used the documents bearing the Applicant’s

name as identification evidence linking the Applicant to the scene. Consideration From the Reasons for Verdict, it is clear that the judge first determined that whoever ran away from the scene must have trafficked in the drugs. He then dealt with the question as to whether the Applicant was the one who ran away. It seems to me to be reasonably arguable that this approach might have flaws in it because depending on who was the one running away from UD9633, the items bearing the Applicant’s name which were found inside the car might have different degrees of importance. For instance, if it was the Applicant who had run away from UD9633, then it might add to the strength of the prosecution case that the Applicant was the trafficker because, if not, why would he have run away from his mother’s car, leaving behind his personal items and the huge amount of cash. In this connection, Mr Oberberg emphasizes the absence of evidence in relation to UD9633 not having been reported missing. There was also no evidence that the Applicant had not reported loss of his HKID card and driving licence, etc. The point made is that if there was this evidence, then it might be difficult to suggest that UD9633 had been stolen or that the personal items of the Applicant had been stolen. I am conscious that the application before me is only a leave application and whether the absence of the above evidence

is of any significance is not a matter which could be fully addressed now. I mention the absence of such evidence merely to show that this was the context in which the judge arrived at his conclusion that the person running away from UD9633 must have trafficked in the drugs and that he did not run away because of any other reasons. In these circumstances, it is, in my view, reasonably arguable that there had been a quantum leap in the judge’s reasoning process for him to conclude that the Applicant must have trafficked in the drugs when the starting point was only that there were items bearing the Applicant’s name found in a car registered in the name of the Applicant’s mother. In respect of Mr Oderberg’s contention that the judge had used the evidence of flight as evidence of guilt without properly directing himself, that will be a matter for the Court’s consideration but I am satisfied that it is a reasonably arguable point. Conclusion Having considered the two grounds of appeal advanced on behalf of the Applicant, I grant leave to the Applicant on both grounds. (Anthea Pang) Judge of the Court of First Instance of the High Court Ms Hermina Ng, SPP of the Department of Justice, for the Respondent Mr Keith J Oderberg, instructed by Littlewoods, for the Applicant