Case Detail

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	1^st Appellant
	LIEW KIAN LEONG	2^nd 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

1. The 1^st and 2^nd 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.

2. 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

3. The prosecution case was that the 1^st and 2^nd 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[1] were packed inside the parcel.

4. The 2^nd 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.

5. The 1^st appellant arrived in Hong Kong on 1 April 2018. He met up with the 2^nd appellant who assisted him to rent a room in another hotel. The 2^nd appellant paid for the initial cost of hiring the room.

6. 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 1^st appellant was staying. The 1^st and 2^nd appellants were seen to be sitting and chatting outside the main entrance of the Hotel. The 1^st 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 1^st 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 1^st appellant’s telephone number was on the waybill attached to one of the two cartons in the 2^nd appellant’s room. Further, in the 2^nd appellant’s room was a receipt of the purchase of plastic bags of the same size as those seized from the 1^st appellant’s room. CCTV footage of the Hotel showed that the appellants had spent a lot of time together after the 1^st appellant’s arrival.

7. Under caution, the appellants denied knowledge of the presence of the drugs. The 1^st 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 1^st appellant later admitted that he knew the 2^nd appellant after being shown a photograph in his mobile telephone. He explained the use for the scale and the resealable plastic bags. The 2^nd appellant said that he only met the 1^st 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.

8. 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.[2]

9. 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

10. Both appellants elected to give evidence.

11. The 1^st 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.[3] All of the items found in his room were for handling the chilli sauce.[4]

12. The 2^nd appellant’s case was that he was in Hong Kong on holiday. It was a pure coincidence that he ran into the 1^st 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.[5]

The judge’s direction on fingerprint evidence

13. 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.”[6]

The single judge’s comment on the directions in respect of fingerprint evidence

14. During the leave application hearing before the Single Judge[7], 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.

1^st appellant’s ground of appeal and submissions

15. Mr Jeremy Cheung, on behalf of the 1^st 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 1^st appellant was a knowing participant in the trafficking, especially since there was no evidence linking the 1^st appellant to the drugs and the wrapping. It was submitted this was a factor which could have tipped the balance in favour of the 1^st 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 1^st 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.

2^nd appellant’s ground of appeal and submissions

16. Mr Wong Hay Yiu, counsel for the 2^nd 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 2^nd appellant received similar parcels from Malaysia weeks before the arrival of the 1^st 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 2^nd appellant’s case of lack of knowledge from the jury, thus rendering the conviction of the 2^nd appellant unsafe and unsatisfactory.

Respondent’s submissions

17. 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

18. 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”[8].

19. In the present case, the Parcel arrived in Hong Kong on 3 April 2018, having been forwarded by DHL on 2 April 2018[9]. The 1^st appellant arrived in Hong Kong on 1 April 2018, before the parcel was sent from Kuala Lumpur. The 2^nd 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.

20. 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.”[10]

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…”[11]

21. 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.

22. 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 1^st 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 1^st appellant did was only to repeat the admitted facts. Instead, there was evidence which pointed to someone else doing the packing and sending.

23. 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.

24. There was no misdirection in this case, and as counsel for the 1^st appellant conceded before us, there was other circumstantial evidence from which the inference could be drawn as to the appellants’ knowledge.

25. 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 1^st appellant

Mr Wong Hay Yiu, instructed by Keith Lam Lau & Chan, assigned by Director of Legal Aid, for the 2^nd appellant

[1] Appeal Bundle (AB), XV

[2] Paragraph 20.1

[3] AB, 2A-D

[4] AB, 22Q-23B

[5] AB, 2E-I

[6] AB, 31B-I

[7] Zervos JA, [2021] HKCA 652

[8] HKSAR v Jassey Francis JA & Anor, CACC 262/2017

[9] Admitted facts, AB VI, paragraph 2.2

[10] AB 557H-J

[11] AB 557K-N

CACC 262/2019

[2021] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 262 OF 2019

(ON APPEAL FROM HCCC 370 OF 2018)

_______________

	HKSAR	Respondent
	v
	CHAN KAI MING (D1)	1st Applicant
	LIEW KIAN LEONG (D2)	2nd Applicant

_______________

Before:

Hon Zervos JA in Court

Dates of Hearing:	5 and 27 May 2021
Date of Judgment:	10 June 2021

________________

J U D G M E N T

________________

Introduction

1. The 1^st and 2^nd applicants stood trial before Deputy High Court Judge Woodcock (the judge) and a jury jointly charged with one count of trafficking in a dangerous drug, consisting of a total of 4.87 kilogrammes of methamphetamine hydrochloride (commonly known as Ice). They pleaded not guilty to the count but were convicted after trial by unanimous verdicts of the jury on 22 August 2019. The next day, they were each sentenced to 28 years and 4 months’ imprisonment.

2. The 1^st applicant now seeks leave to appeal against both conviction and sentence, while the 2^nd applicant seeks leave to appeal against conviction only. Both applicants appear in person, having had legal aid and other free legal services refused.

3. At the first hearing, they both submitted written submissions in Chinese. The 1^st applicant formally abandoned his application for leave to appeal against sentence and accordingly it was dismissed. The hearing was adjourned in order to arrange English translations of the submissions submitted by the applicants and to give the respondent an opportunity to consider and respond to the grounds advanced by them. I should point out that they filed their leave applications in September 2018, without stating any grounds of appeal. They were provided with an appeal bundle in October 2019 and a Chinese translation of the summing-up in August 2020. They both claimed they filed their written submissions at the last minute because the papers were in English and it took time to have some of the papers translated into Chinese for them to consider.

4. At the adjourned hearing, the 1^st applicant handed up a covering letter dated 18 May 2021, attaching a written submission in response to the supplemental submission of the respondent. He also handed up an extract of the summing-up of Campbell-Moffat J in HKSAR v Ali Haidar, HCCC2/2018. The covering letter and attachments had not been received by the court.

The prosecution case

5. The prosecution case was that the 1^st and 2^nd applicants jointly arranged to import into Hong Kong drugs contained in a parcel that had been sent from Malaysia.

6. The 2^nd applicant was the first of the two to arrive in Hong Kong on 20 March 2018. He checked into the Wing Tai Guesthouse at Pak Lok Building, 326 Nathan Road, Kowloon. During his stay in Hong Kong, he had arranged two parcels to be delivered to him from Malaysia.[1] The first parcel, Exhibit P52, arrived on 21 March 2018 through the freight services of DHL. The second parcel, Exhibit P53, arrived in Hong Kong from Malaysia on 26 March 2018 and again through the freight services of DHL. Both parcels were sent to the 2^nd applicant at the address of the guesthouse. The parcels contained foodstuffs.[2]

7. On 1 April 2018, the 1^st applicant arrived in Hong Kong from Malaysia. He met the 2^nd applicant and together they looked to find suitable accommodation for him. They went together to the Bridal Tea House Hotel (the hotel) where the 1^st applicant rented a room.[3] The 2^nd applicant paid for the initial cost for the room. It was explained by the 1^st applicant that the 2^nd applicant did so because he had not converted his Malaysian money into Hong Kong currency.[4]

8. Both applicants had entered Hong Kong on a visitor’s visa.

9. On 3 April 2018, Customs officers conducted an examination of an inward bound DHL courier parcel with waybill numbered 7076903341. They found inside the parcel 3 large bottles of Sambal chilli sauce, which contained 9 packets of a total of 4.87 kilogrammes of Ice.[5]

10. On the same day at 4:28 pm, Customs officers conducted a controlled delivery operation in respect of the parcel. They first contacted the consignee of the parcel by calling the telephone number 54294215 that was stated on the waybill, whose subscriber was the 1^st applicant. At about 4:45 pm, Customs officers observed the 1^st and 2^nd applicants sitting and chatting on the wooden bench outside the main door of the hotel.[6]

11. When the Customs officer, posing as an employee of DHL, arrived at the hotel, the 1^st applicant claimed to be the consignee of the parcel. His name was slightly different from the name on the waybill but his identity was confirmed by using his telephone number 54294215 to call the undercover Customs officer. Upon acknowledging receipt of the parcel, the 1^st applicant was arrested and thereafter the 2^nd applicant, who was present in the hotel.[7]

12. The hotel rooms of the applicants were searched. Inside the 1^st applicant’s room, Customs officers found a rucksack containing a new cutter, 93 resealable plastic bags, a small electronic scale and 11 rubber gloves.[8] Inside the 2^nd applicant’s room, they found two opened DHL cartons, which contained some foodstuffs. The 2^nd applicant was the consignee for both cartons. On the waybill attached on one of the cartons was the same telephone number, namely 54294215, as stated on the parcel containing the drugs. They also found a receipt for the purchase of the very same size plastic bags recovered from the 1^st applicant’s room.[9]

13. The CCTV footages of the hotel showed that both applicants spent a lot of time together from the moment the 1^st applicant arrived.[10]

14. Under caution, the 1^st applicant said that in respect of the parcel he had asked his friend, Grace Ong, to send him some chilli sauce and native food products in order to conduct a marketing survey in Hong Kong. He did not receive any remuneration for collecting the parcel.[11]

15. Under caution, the 2^nd applicant denied he knew the 1^st applicant.[12]

16. In a subsequent video recorded interview, the 1^st applicant stated:

(a) He asked a friend called Grace Ong to deliver some chilli sauce samples to him for his marketing work in Hong Kong but he did not know exactly what the parcel contained.[13]
(b) He originally claimed that he did not know the 2^nd applicant before he came to Hong Kong[14] and the 2^nd applicant did not know he would receive a parcel from Grace Ong.[15] However, after showing him a photo in his mobile phone,[16] the 1^st applicant admitted he knew the 2^nd applicant before he came to Hong Kong.[17]
(c) He denied he arranged the drugs to be delivered to Hong Kong.[18]
(d) He admitted there was a scale and some resealable plastic bags inside his backpack, which were placed inside his hotel room[19] and they were used for packaging the chilli sauce.[20]

17. In a subsequent video recorded interview, the 2^nd applicant said:

(a) He came to Hong Kong as a tourist[21] but he did not want to go for any sightseeing[22] and only wanted to rest.
(b) He had known the 1^st applicant for 3 to 4 years[23] but he only met him in Hong Kong by coincidence.[24]
(c) He had helped the 1^st applicant to check the status of the parcel at the website of DHL.[25]
(d) He had asked some of his friends in Malaysia to send boxes of food to him in Hong Kong but he did not open the chilli sauce bottle.[26]
(e) The plastic bags found in his room were bought by him in Hong Kong and were to be used to seal coffee powder.[27]
(f) He denied he had any knowledge of the contents of the parcel.

18. In the 1^st applicant’s mobile phone, he saved the contact details of Grace Ong and her profile picture also appeared in the 2^nd applicant’s mobile phone as a WeChat contact by the name of “Chi Chi”.[28]

19. The street value of the drugs at the time of the offence was about $3,456,120.[29]

The defence case

20. Both the 1^st and 2^nd applicants elected to give evidence but did not call any witnesses on their behalf.

21. The 1^st applicant’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. The parcel was sent to him by a supplier, at his request, and he had no idea or any knowledge of the Ice inside the chilli bottles.[30] All the items found in his room were for handling the chilli sauce.[31] He claimed that all the phone calls between him and Grace Ong after his arrival in Hong Kong were about the safe arrival of the parcel.[32]

22. The 2^nd applicant’s case was that he was in Hong Kong on holiday and had not arranged to meet the 1^st applicant. It was purely a coincidence that they were in Hong Kong at the same time. They met up to have a meal and chat. The food found in his hotel room was previously sent to him from Malaysia by DHL and was for his own consumption or to be given as gifts to a relative. It did not contain any drugs and he had no knowledge of the drugs found in the parcel.[33]

The issue at trial

23. The main issue at trial was whether each applicant knew there were drugs in the parcel and whether they were involved together in the importation of the drugs.[34]

24. The judge gave the standard directions to the jury in her summing-up, explaining the elements of the offence,[35] the concept of joint enterprise[36] and the drawing of inferences.[37] The judge also gave a good character direction in favour of both applicants.[38] The judge summarised in detail the evidence for the prosecution[39] and the defence[40] and focused the jury’s attention on the issue as to whether the applicants knowingly imported drugs into Hong Kong.

The grounds of appeal

25. The 1^st and 2^nd applicants did not enumerate any grounds of appeal in their respective appeal notices. They have, however, in their respective written submissions make general complaints about certain evidential matters and the judge’s handling of them.

26. They both complained that they are without legal representation in making their leave applications and that the papers are mainly in English, without Chinese translations (although their proficiency in Chinese is limited), which has made it difficult for them to prepare their written submissions. They also complain that because they are Malaysian nationals they have limited legal knowledge and language ability in order to conduct their applications. As I have already noted, the applicants have applied to various free legal services for legal assistance, which have been refused. It is apparent from the court file that throughout the proceedings of this case a Chinese interpreter has been made available to provide translation services to the applicants, and that documents, including translations of documents from English to Chinese when appropriate, have been provided when requested by the applicants. Both applicants submitted written submissions in Chinese in which they had indicated that they had been assisted by fellow inmates.

27. The 1^st applicant complains that it was wrong for the judge to present to the jury that there was no issue that he had taken possession of the parcel. He makes the point that his fingerprints were not found on the parcel and that he did not touch the parcel prior to his arrest. He asks rhetorically how could he be found to be in possession of the parcel in such circumstances. He also complains the judge failed to give a lies direction to the jury.

28. The 2^nd applicant complains that the judge wrongly allowed evidence to be adduced at trial of his prior receipt of two parcels and the linking of one of those parcels with the parcel containing the drugs because of a common telephone number on the airway bills. He also complains that there was no direct evidence against him of having knowledge of the drugs in the parcel and the prosecution case was based on circumstantial evidence and inferential reasoning.

29. Mr Derek Wong, for the respondent, explains that the present case hinged on whether the circumstantial evidence was sufficient for the jury to draw the only reasonable inference against the two applicants that they knew there were dangerous drugs in the parcel. He notes that the judge clearly emphasised this issue with the jury.

30. The judge had also addressed the concept of drawing an inference[41] and repeatedly reminded the jury that the inference had to be the only irresistible one.[42] She explained to the jury why the prosecution said this inference was the only irresistible one[43] and why the defence said it was not.[44] She directed the jury on various occasions that if the version of the applicants was true or might be true, they should be acquitted.[45]

31. Mr Wong submits that the judge’s directions were fair and balanced and no error could be found in her summing-up.

Discussion

32. The 1^st applicant complains that the judge incorrectly told the jury that there was no issue that he had taken possession of the parcel. His complaint is directed to the judge’s italicised remarks in the following passage:

“In cross-examination, it was suggested to PW3 that the 1^st defendant never voluntarily identified himself as, “Jonathan Chan”, either over the phone or outside the hotel. You will recall PW3 disagreed. He also disagreed with the suggestion that he arrested the 1^st defendant as he took hold of the box but had not yet turned around to walk away. However, there is no suggestion by the 1^st defendant that he did not take possession of the box.”[46] (Emphasis added)

33. The 1^st applicant argues that it was always his case that he denied taking possession of the parcel but this claim is inconsistent with the evidence that he gave at trial. His evidence was that he had arranged the parcel of chilli sauce to be sent to him in order to do some market research and that when the parcel was delivered to him at the hotel he had to confirm his identity with the Customs officer, who was posing as a DHL employee. Having confirmed that he was the consignee of the parcel, he signed the delivery form to acknowledge receipt of it. His defence at trial was he did not know the parcel contained drugs.[47]

34. Mr Wong is correct in his submission that the 1^st applicant has equated possession with “physical contact”, while in law a person has possession of an item if it is in his actual physical custody, or otherwise within his control, and he knows it is there and has the intention to exercise custody or control over it. He submits that once the 1^st applicant accepted delivery of the parcel by signing the acknowledgement of receipt of it he had taken possession as it was under his control at that moment. He points out that this was not disputed by the 1^st applicant at trial. He refers to defence counsel’s closing address to the jury that there was no dispute by the 1^st applicant that he signed the receipt for the parcel and that the key question was whether he knew before his arrest that there were drugs inside it.[48] I should add that the remarks of Campell-Moffat J in the extract of her summing-up in HKSAR v Ali Haider which the 1^st applicant relies upon, seem confined to an issue of actual physical possession and are not an authoritative statement on the legal principles in respect of possession.

35. When it came to the issue of possession, the judge reminded the jury:

“The prosecution alleges the defendants possessed the dangerous drugs for the purposes of trafficking in them. You may not convict the defendants unless you are sure that the prosecution had proved that on that day, on or about 3 April, (a) the defendants possessed the dangerous drugs in that box, (b) they knew dangerous drugs were in that box and (c) they possessed the dangerous drugs for the purposes of trafficking in them.”[49]

36. The judge went on to give a very full explanation of what constituted possession:

“As a jury, you have to be sure that the defendants had the drugs in their possession. A person is in possession of an object if it is in his actual physical custody, like in his hand or in his pocket, or it is otherwise within his control, for example, kept in his bedroom and he knows it is there and he has the intention to exercise custody or control over drugs kept in his bedroom. The 1^st defendant, the prosecution say, was in physical custody having signed for the box as the named consignee. He agrees he signed for it and the 2^nd defendant was with him and had the same intention as him, that is to exercise custody or control over the contents of that box.
The drugs can be in possession of more than one person at a time. The drugs may be possessed by more than one person at the same time. If two or more people exercise custody or control over drugs and that any of them may deal with the drugs as and when they see fit, then all are in control of the drugs in the sense that I have described the word ‘control’ and all are therefore in possession of those drugs.
It will remind you again that you must consider the case against and for each defendant separately. The evidence concerning each defendant is different and therefore your verdict may not be the same for each defendant. For example, here the 1^st defendant took physical custody of the box and acknowledged that he was the consignee named by the shipper. The 2^nd defendant is not named by the shipper on the waybill or the shipper’s declaration form, but you may find from other evidence that he is also in possession and has the intention to exercise custody or control over the drugs with the 1^st defendant.”[50]

37. It should also be noted that the judge highlighted to the jury the different versions between PW3 and the 1^st applicant as to whether the 1^st applicant had physically taken the parcel.

38. It was an admitted fact that no marks of any value were found on the drug exhibits for the purpose of fingerprint identification. In respect of this evidence, the judge said that the fact that neither the 1^st applicant, nor the 2^nd applicant’s fingerprints could be identified was “neither here nor there”, and the absence of such information “did not help the defendant”. She added that a lack of fingerprint evidence is “a neutral factor” and “proves nothing either way”.[51]

39. As rightly pointed out by Mr Wong, the lack of the 1^st applicant’s fingerprints on the parcel was of no significance to the issue of possession in light of the evidence that the 1^st applicant arranged the parcel to be sent to him and when it arrived he acknowledged receipt of it. He notes that defence counsel in his closing address to the jury, whilst mentioning the lack of the 1^st applicant’s fingerprints on the parcel, did not as a consequence invite the jury to draw an inference in favour of the 1^st applicant.[52] However, it seems to me that defence counsel mentioned this because there was no evidence linking the 1^st applicant to the drugs and their wrappings. The point Mr Wong makes may be correct in relation to the argument about possession, but did the judge inadvertently remove from the jury a relevant consideration as to whether the 1^st applicant knew there were drugs in the parcel; was it “neither here nor there” that the 1^st applicant’s fingerprints were not found on the drug exhibits? Was the 1^st applicant entitled to have that fact considered by the jury in support of his defence that he did not know there were drugs in the parcel?[53]

40. The 1^st and 2^nd applicants openly admitted that they had not told the truth about knowing each other at the time that they were arrested. Both in their evidence explained why they did so. Prior to the judge giving her summing-up to the jury, she discussed this issue with counsel. None of the counsel suggested that a lies direction was required. It was the prosecution’s position that a lies direction was not necessary because no point was being made of the matter.[54]

41. In the circumstances of the case, it was appropriate that the judge did not give a lies direction, and in fact it may have done more harm than good if the judge had done so. See Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, and Jim Fai v HKSAR (2006) 9 HKCFAR 85.

42. The 2^nd applicant complains that the discovery of the two DHL parcels found in his room was irrelevant to the offence he faced and should not have been adduced into evidence. The telephone number of the sender on the second parcel received by him was the same as the one on the waybill of the parcel, containing the drugs, sent to the 1^st applicant. The prosecution relied on this evidence, amongst others, to show that the two applicants were jointly engaged in the drug trafficking offence.[55]

43. It was not in dispute at trial that the two parcels were received by the 2^nd applicant and no issue was taken as to their admissibility. The two parcels and their respective waybills were produced by way of an admitted fact.[56]

44. I do not find the complaints raised by the applicants to be reasonably arguable. The subject evidence was relevant and properly adduced before the jury and the judge’s handling of these evidential matters and the legal issue as to possession cannot be faulted.

45. The only point that I find there is a reasonably arguable ground of appeal relates to the judge’s comments in respect of the fingerprint evidence and on this basis I grant the applicants leave to appeal their convictions.[57] I also grant the applicants an Appeal Aid Certificate in order to assist them in arguing their appeal before the Court of Appeal.

46. In respect of the home-made grounds of appeal that the two applicants have advanced, and in respect of which I have refused leave, they are reminded of their right to renew their applications for leave to appeal on those grounds to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction of any loss of time spent in custody pending the appeal, if the Court were to come to the view that there was no justification for the renewal of their applications.

	(Kevin Zervos)
	Justice of Appeal

Mr Derek Wong, SPP of the Department of Justice, for the respondent

The 1^st and 2^nd applicants appear in person

[1] Appeal Bundle (AB), IV and V, Admitted Facts, at [1.1 and 1.2].

[2] AB, Admitted Facts, at XI and XII, Admitted Facts, at [7.1].

[3] AB, Admitted Facts, at [1.3 and 1.4].

[4] AB, 11K-12M.

[5] AB, VI-VII, Admitted Facts, at [2].

[6] AB, VII and XVII, Admitted Facts, at [3], AB, 14S-15A.

[7] AB, VIII and IX, Admitted Facts, at [3.2-3.5] and [4], AB, 12P-13T, 15J-N.

[8] AB, 14E-H.

[9] AB, 10N, 15S-16O and 39I-R.

[10] AB, 41A-C.

[11] AB, 62.

[12] AB, 316.

[13] Counters 375-561.

[14] Counters 604-634.

[15] Counter 756.

[16] Counters 1197-1216.

[17] Counters 1241-1246.

[18] Counters 842-847.

[19] Counters 869-927.

[20] Counters 934-949.

[21] Counters 106-107.

[22] Counters 178-181.

[23] Counters 255-264.

[24] Counters 296-369.

[25] Counters 458-500.

[26] Counters 515-556.

[27] Counters 649-699 and 906-914.

[28] AB, 38T-39D.

[29] AB, XV.

[30] AB, 2A-D.

[31] AB, 22Q-23B.

[32] AB, 26I-O.

[33] AB, 2E-I.

[34] AB,2K-N.

[35] AB, 31I-34I.

[36] AB, 34J-U.

[37] AB, 36B-37N.

[38] AB, 8D-O.

[39] AB, 10G-17J.

[40] AB, 21C-30I.

[41] AB, 36B-37N.

[42] AB, 36F, 37J-M, 41J, 410 and 43E.

[43] AB, 37P-41O.

[44] AB, 41P-43D.

[45] AB, 2J, 6R and 44B.

[46] AB, 14K-O.

[47] AB, 22H-24T.

[48] AB, 560H-L and 562N.

[49] AB, 32B-F.

[50] AB, 33B-Q.

[51] AB, 31B-I.

[52] AB, 561E-H.

[53] See Specimen Directions in Jury Trials, 2020: Chapter 108, Identification.

[54] AB, 582C-584B.

[55] AB, 558L.

[56] AB, XI and XII, Admitted Facts, at [7.1(ii)].

[57] Paragraph 39 of this judgment.

HKSAR v. CHAN KAI MING AND ANOTHER

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