Case Detail

HCCC 252/2019

[2020] HKCFI 3002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

_________________

BETWEEN

	HKSAR
	and
	KO WAI KIT	1st Accused
	HUI WAI KIT	2nd Accused

_________________

Before: Deputy High Court Judge Bruce, SC in Court

Dates of Hearing: 13 and 14 January 2020

Date of Reasons for Ruling: 1 December 2020

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REASONS FOR RULING:

No Case to Answer

__________________________________

SUBMISSION OF NO CASE TO ANSWER

1. The 1st accused and 2nd accused both submit that they have no case to answer. At the conclusion of the hearing of the submission of no case to answer, on 14 January 2020, I ruled that:

“I am satisfied that upon the basis that the underlying basis for the prosecution case is that the accused were dealing with or dealing in a dangerous drug, and applying the recognised test, the evidence in respect of each of the two accused is such that a properly directed jury could, may or might convict that accused. Accordingly, I hold that in respect of both accused there is a case to answer. For the avoidance of any doubt about the matter, the evidence which is admissible against each of the two accused is different and I considered the case of the two accused individually. I will provide reasons in writing for my decision in due course.”

2. In relation to the undertaking given to provide reasons, these are those reasons.

EVIDENCE AND CASE FOR THE PROSECUTION

Overview of the case for the prosecution

3. The case for the prosecution is that the two accused in their own individual ways were dealing in or dealing with a dangerous drug knowing that is what they were dealing with or dealing in and they did so for the purpose of unlawful trafficking as opposed to for the purpose of self-consumption.

Evidence in support of the case for the prosecution

4. On 25 July 2018, at 3:37 am at the DHL Central Asia Hub at the Hong Kong International Airport and operations agent of DHL handed over a parcel to customs officers for examination.^{^[1]} The package appeared according to the documents attached to it to have been sent from Malaysia. The parcel had an airway bill AWB 539-04874262. The package was declared to contain a “Gloria Baby Chair”. The consignee was given as a Mr Tony Frank at an address in Yuen Long.^{^[2]}

5. The parcel raised the suspicions of customs officers and was examined and tests were performed. The tests revealed that within the metal frames of the baby chair, there was some methamphetamine hydrochloride. Indeed, in due course the contents of the metal frames of the baby chair were analysed by the Government Chemist and in the result, it was found to contain 796.2 g of a crystalline solid containing 776.3 g of methamphetamine hydrochloride. These tests were conducted on 10 August 2018.^{^[3]} It was determined by the Customs & Excise Service to conduct a controlled delivery.

6. In fact, four controlled deliveries were attempted between 25 July 2018 and 6 August 2018, all of which were unsuccessful.^{^[4]} The 5th controlled delivery and the events leading up to that controlled delivery brought about the arrest of 1st accused and 2nd accused. The four unsuccessful controlled delivery operations are, nevertheless, very important components in the narrative leading up to the controlled delivery in which the first and then 2nd accused were arrested.

7. The first attempt to deliver the parcel occurred on 25 July 2018 between 4 pm and 6 pm. Two officers, one of whom was CO 16118, disguised themselves as DHL officers by wearing the uniform of DHL. They used an unmarked goods vehicle and not one using the legend DHL. Apparently, the officers were not able to borrow a DHL-marked truck.

8. In any event, CO 06111 and his colleague CO 16118 went to Sheung Che Tsuen, Fan Kam Road in Kam Tin. The locality that they went to was the result of their interpretation of the curiously-written address for the consignee written on the airway bill which is P 24.^{^[5]} In this attempted delivery, CO 06111 knocked on the door several times but there was no response. This operation was terminated at 6 pm.

9. The second controlled delivery operation occurred on 26 July 2018 when CO 06111 and his colleague went to the same address. He told the court that he tried to call the number (6385 7974) mentioned on the airway bill as being the number for the consignee. The first call got through but nobody answered. Shortly after that the officer received a call back and his own mobile phone displayed the number 6385794. He told the court that the caller was a male speaking in English. The officer said that he was a DHL staff member and the male said that he was Tony Frank and he gave the airway bill number 5603926506 which was the airway bill number on the parcel in question. The male enquired about the progress of delivery and expressed anxiety the parcel be delivered as soon as possible.

10. The officer described the caller purporting to be Tony Frank as speaking non-fluent English. He told the person who claimed to be Tony Frank that he was in the vicinity and wearing a DHL uniform. The person claiming to be Mr Frank claimed that he was not at home and asked him to wait. The officer said he waited. Another call was received and claimed he was Tony Frank and asked them to continue to wait. The officer attempted a further call which was connected and then immediately hung up. The officer said that he continued to wait and after there were no further calls and following one attempt to connect with the number given for the consignee did not connect, they gave up the operation for that day. During the course of this second attempt to deliver parcel, CO 06111 used a phone number supplied to him by the Customs & Excise Service. The number was 9340 9788.

11. On 30 July 2018, the third attempt was made to deliver the parcel. This occurred at around 11 am. The same officer that is, CO 06111 called the number on the airway bill that is 6385 7974. The officer used the same mobile phone number that he had used in the previous attempted delivery, that is, 9340 9788. In any event, when this officer called the number given in the airway bill, the phone was answered and a male who said he was not the consignee, was not Tony Frank and therefore would not receive the parcel.^{^[6]}

12. Later on that day, that is 30 July 2018 at 2:43 pm, DHL received a call from a person who claimed to be the consignor and that person instructed DHL to change the name and details of the consignee.^{^[7]} The person who claimed to be the consignor instructed DHL to send the parcel to a person named Delex Armstrong, Flat D, 8th Floor, 25 Kin Tark Street, Yuen Long. A new contact number was given as 5584 8426. At 5:45 pm, as a result of this contact received from DHL, CO 06111 and his colleague went to the address given and at the address of woman answered the door and said that a person bearing the name Delex Armstrong did not live there. This attempt was also terminated.

13. On 3 August 2018, DHL received a further request to change the consignee of the parcel. The request came from person claiming to be the consignor. The address given was Room 1114, Wang Sin House, Cheung Wang Estate, Liu To Road, Tsing Yi (“Room 1114”). The name of the new consignee was given as Ko Wai Kit the same name as 1st accused. The new contact number was given as 6538 9957.^{^[8]} The number 6538 9957 was not a number admitted to be used by 1st accused.

14. On 6 August 2018, the next attempt was made by the Customs & Excise Service to deliver the parcel. The same officers, again wearing DHL uniforms, attended at 10:15 am. Somebody knocked on the door and no one answered. CO 06111 called the number given, that is 6538 9957. By this stage, the officer was using another mobile number supplied by the Customs & Excise Service, that is, 5126 8648. A male answered 6538 9957 and claimed to be Ko Wai Kit. (The accused Ko Wai Kit is a female.) The officer said that he was from DHL. The male who made the call to the officer call related to him the relevant airway bill number. That male spoke in English. CO 06111 observed that the English of this male was not fluent. He requested the officer to wait in the Tsing Yi area. This was significant because while the male asked the officer where he was, the officer did not answer the question and this carries with it the possible implication that the male knew where the parcel was to be delivered.

15. A further call was made to the customs officer’s number displaying the number 6538 9957 and the caller, a male speaking non-fluent English asked the officer to wait in the Tsing Yi area. Further calls were made and in one of them the male who answered said, once again, that he was Ko Wai Kit. In the result, there was no delivery.

16. Later in the afternoon of 6 August 2018, an English-speaking male called the DHL service hotline, claiming to be the consignee and asked for the parcel to be delivered between 11 am and 1 pm on 7 August 2018.^{^[9]}

17. The next day, that is 7 August 2018, a further attempted delivery was made. It is noteworthy that no attempt was made to deliver between 11 am and 1 pm. (Inspector Chow, who was the officer-in-charge of the investigation - which included the controlled deliveries - testified that it was simply not possible to organise the deliveries for that time.)

18. It is an admitted fact that on 7 August 2018, a Cantonese- speaking female, claiming herself to be the new consignee, that is Ko Wai Kit, contacted the DHL service hotline. The number that this person used was 5984 1513.^{^[10]} That is 1st accused ‘s number. Pausing there for a moment, it is also an admitted fact that DHL hotline number is 2400 3388.^{^[11]}

19. Later on 7 August 2018, at about 5:15 pm, CO 06111 and his colleague went to the new consignee’s address at Room 1114. The wooden door was not wholly closed so they banged on the metal gate. They knocked on the door and 1st accused answered. CO 06111 said that he was from DHL and 1st accused said that she was Ko Wai Kit. The officer asked her if she was expecting a DHL parcel and she said yes. He asked for the airway bill number and 1st accused showed an envelope with that number written on the back.^{^[12]} Also written on the back of the envelope was the DHL hotline number 2400 3388. CO 06111 asked for the HKID card of 1st accused which she duly produced. In the result, she signed a receipt which can be seen at exhibit P 26. 1st accused also signed on what is described as a delivery sheet that is P 25. The name and identity card number of 1st accused and the word “Ko” appear on the delivery sheet. Apparently 1st accused used “Ko” as her signature. It is also noteworthy that exhibit P 25 in the left-hand column reveals two phone numbers. The first one is 6538 9957 which had been used on 6 August 2018 to call about the time for delivery on 7 August 2018. This was also the number that was given when the sender purported to change the consignee on 6 August.

20. Once the documentation was completed, CO 16118 who was the colleague of CO 06111, handed the parcel to 1st accused which she took into her hands. At that time, CO 06111 produced his warrant card and told her he was a Customs Officer. 1st accused was arrested. In the words of arrest, CO 06111 asserted simply that she had contravened the Dangerous Drugs Ordinance. 1st accused was cautioned and in response she said that she understood. She was then questioned. She was asked whether the parcel belonged to her. She said that it belonged to her friend who she initially named as “Gau Gor”. The officer asked for the full name of this person and 1st accused said Hui Wai Kit. The officer then asked 1st accused whether she had any idea what was in the parcel. 1st accused answered that she had no idea. She was asked whether she would receive a reward to which she answered in the negative critically, she was asked what she would propose to do with the parcel and she said he was going to wait for Gau Gor to collect it. It was common ground that what 1st accused said to the officers was inadmissible and could not be used against 2nd accused.

21. A search was made of 1st accused and a mobile phone was found. It is admitted that a Nokia mobile phone belonging to 1st accused was seized from her. The number of that mobile phone is 5984 1513. It is also admitted that the mobile phone has a WhatsApp social communication platform and the number used by 1st accused for that purpose was 9240 0390.^{^[13]}

22. After the arrest of 1st accused other customs officers attended at the residence of 1st accused. They discovered there was already a male thereby the name of Chan Kwok Fung. It was said that he was the younger brother of 1st accused. It was said that he had nothing to do with the parcel. In the result, Mr Chan was taken by other customs officers to a vehicle they had parked nearby. Enquiries were made of him and he was released in due course. It has never been suggested that he had anything to do with the parcel.

23. Following the enquiries and the discovery of Mr Chan, CO 06111 wrote down in his notebook a post record of his dealings with 1st accused. That was produced as exhibit P60. The post record includes a record of 1st accused signing for the parcel and checking the airway bill. The post record also includes a record of the exchange of words between the 1st accused on arrests and caution and what followed that. The relevant questions and answers are as follows:

“Question: Is the postal item yours?
Answer: It is not mine my friend asked me to receive it.
Question: What is the name of your friend?
Answer: Gau Gor.
Question: Do you have his full name?
Answer: Hui Wai Kit
Question: Have you received any reward?
Answer: No.
Question: What would you do after receiving the postal item?
Answer: I will wait for Gau Gor to come up here to get it.”

(A little later on in the post-record, questions were asked about Mr Chan to which reference was earlier made. Nothing turns on this.) The post record was then read over to 1st accused and she was invited to read it herself. She was asked whether she needed to alter, correct or add anything to the record. Replied that there was no need. She added in her own handwriting the words:

“I, Ko Wai Kit, have read this record of interview […..]. It is an accurate record of questions asked and answers I provided.”

The post-record was then signed by all concerned. There is also an assertion written by 1st accused that she made post record of her own will.

24. A document known as a Notice to Persons in Custody was served on 1st accused. It is exhibit P 57.

25. By this time, Inspector Chow, the officer in charge of the case, had attended at Room 1114. He was clearly interested in making a further controlled delivery. He made enquiries of 1st accused including whether she was willing to assist the customs officers in this regard. All of this was done under caution and a series of questions were then asked as follows:

“Question: Whose parcel is it?
Answer: It is not mine. Gau Gor asked me to collect it.
Question: When did Gau Gor ask you to collect it?
Answer: In late July, he asked me to give my name and address to him. He also said that he did not have a fixed residence and asked me to let him use my place to receive parcel.
Question: Did Gau Gor tell you what this parcel is?
Answer: No. Yesterday he gave me the goods number by WhatsApp.
Question: What was the arrangement after you have received the parcel?
Answer: He will come up to find me later.
Question: Do you get any remuneration for receiving the parcel?
Answer No. I have known him for a long time.
Question: Do you know Gau Gor’s full name?
Answer: I know. It is Hui Wai Kit.”

Following this series of questions, 1st accused agreed to participate in a further controlled delivery. The record of this arrangement was admitted into evidence as exhibit P 59.

26. In relation to the conduct of the case of 1st accused, it is noteworthy that the brief cross-examination of the relevant prosecution witnesses was brief. Perhaps of most significance was the acceptance by CO 06111 and Inspector Chow that 1st accused was at all times cooperative. The fact that she was prepared to take part in a further control delivery is cogent evidence of that fact.

27. The further controlled delivery was not effected. Inspector Chow said that some planning is needed for such operations and before that could be done a further and highly significant event occurred: the arrival of 2nd accused.

28. Both Inspector Chow and CO 1408 who was the arresting officer of 2nd accused testified that they were both inside Room 1114. That was about 8:15 pm. There is also evidence which is admitted^{^[14]} of two journeys of a person fitting the description and wearing clothes consistent with what 2nd accused was wearing when arrested which the jury could conclude was 2nd accused. The first entry, which is recorded on CCTV is an entry on 7 August 2018. We see the person fitting the description of 2nd accused entering the building in the morning and leaving the very early afternoon. It is to be recalled that on 6 August 2018, that is, on the day before the delivery, an English-speaking male called the DHL service hotline claiming to be the consignee and asked for the parcel to be delivered between 11 am and 1 pm on 7 August 2018. Given the description of the gender of the person who made the call, it is highly unlikely that the caller was 1st accused.

29. Inspector Chow and CO 1408 both said that the wooden door was not fully closed and they heard metal grill being opened. CO 1408 was one of the officers who attended at the flat after the arrest of 1st accused. CO 1408 was assigned to be the arresting officer of such persons as may arrive. It was clear from the testimony of CO 1408 that he did not know much about the case.

30. On the arrival of 2nd accused at the flat, he opened the wooden door. The Inspector asked 1st accused who this person was and she answered Hui Wai Kit (which is, of course, the name of 2nd accused). Following that, CO 1408 went forward and arrested 2nd accused. He was arrested and was told that he was suspected of contravening the Dangerous Drugs Ordinance. He was cautioned in the classical manner and indicated that he understood. At that stage, CO 1408 brought 2nd accused inside the flat to ask him questions. It was, apparently, somewhere near the bedroom. He was asked for his name and he said “Hui Wai Kit”. 2nd accused was then asked why he came here, he said “I come to chitchat with my elder sister.” The officer then asked 2nd accused what her name was. He said “Ko Wai Kit”. He was further asked why he came here he said that he had no place to go.

31. At the time of his entry, 2nd accused was carrying a backpack. That was searched and two mobile phones were found in that backpack. It is an admitted fact that the first of these mobile phones was an LG phone which was purple in colour and the phone number for that phone was 5981 1033. That phone is exhibit P 37. The other mobile phone seized in the backpack of 2nd accused was a black coloured LG mobile phone which was a dual Sim card phone using the numbers 5519 5285 and 6488 2519. This mobile phone is exhibit P 40.^{^[15]} Both the purple LG mobile phone and the black LG mobile phone had the social communication platform known as WhatsApp installed on them.

32. CO 1408 testified and it is an admitted fact that on 16 and 17 October 2019, the officer took what are known as screenshots of the mobile phone of 1st accused (that is, with the phone number 5984 1513 and the WhatsApp function using 9240 0390). On those dates, CO 1408 also took screenshots of purple LG mobile phone and the black LG mobile phone which had been found in the backpack of 2nd accused.^{^[16]} It is also admitted that these three mobile phones were functioning properly and had not been improperly tampered with (there is a slight spelling mistake in the admitted facts in this regard) since their seizures on 7 August 2018 and at the time when these screenshot photographs were being taken, the mobile phones were also working properly.^{^[17]}

33. A selection of screenshots from these mobile phones were tendered in evidence. They may be seen in the bundle supplied to the jury.

34. CO 1408 testified as to the process of taking the screenshots of the various phones. His testimony was given without objection and was not the subject of anything other than a very brief cross-examination on behalf of 2nd accused. Significantly, the perhaps critical question asked by 2nd accused of this officer was that he was unable to say whether any of the assertions in the screenshots which have been exhibited were true.

35. A good deal of the focus of the examination of the mobile phones through the screenshots presented to the court was focused on the entries in the WhatsApp section of the phone. Those were the subject of a vigorous challenge as to their admissibility at an earlier time and I ruled that they were admissible. However, it is clear from the screenshots that there is a good deal more to the screenshots than just the WhatsApp material. This is why it is significant that there is an admitted fact as to the fact that at the time of the seizures by the Customs & Excise officers, that both mobile phones were functioning properly and that there was no improper tampering with the mobile phones and that they were functioning properly at the time that the screenshots were taken. I interpret that admission as including admission that the functions on the mobile phone such as WhatsApp operating or functioning properly.

36. CO 1408 then took the court through the various screenshots of the three mobile phones.

37. In relation to the Nokia phone of 1st accused, CO 1408 identified the home screen on page 1.^{^[18]} On pages 3 and then 4-19 we see the call register of that phone. In that phone’s call register, CO 1408 pointed out on page 3 reveals that calls had been received from the phone numbers 6488 2519 (which is one of the dual Sim card numbers in the black LG phone found in the backpack of 2nd accused) and 5126 8648. 5126 8648 was a number used by CO 06111 on 6 and 7 August 2018. On page 4, there is record of contact with the DHL hotline number. This is also seen on page 5 on two occasions and on pages 8 and 9. This call register also reveals contact with the second of the two SIM cards on the black LG phone. That number is 6488 2519. We see that on page 4 of the call register of 1st accused. We also see telephone contact with Ah Gau numerous times including on pages 3, 4, 6, 8, 9, 10, 11, 12, 15, 17, 18 and 19. There is also in this call record records of contacts with Gau Gor which can be seen on pages 5, 6, 7, 8, 12, 13, 15, 16, 17 and 18.

38. It is noteworthy perhaps that on page 8 there is a call to the DHL hotline and shortly after that there are 3 calls between 1st accused and Ah Gau. On page 9 we see 3 calls between 1st accused and Ah Gau followed by almost immediately by two calls to a number used by CO 06111 on 6 and 7 August. Following the telephone contact with the number used by CO 06111, there is further telephone contact shortly after that with Ah Gau followed by three telephone contacts with the number used by CO 06111.

39. It is also perhaps noteworthy that the telephone contact between 1st accused and Gau Gor is shortly before a contact with the DHL hotline is followed by a telephone contact with Gau Gor followed once again by a telephone contact with DHL hotline. That can be seen on page 5.

40. 1st accused said in her statements to the officers of the Customs & Excise Service that she passed on her details to Gau Gor in, as she put it, late July. That is not evidence against 2nd accused. However, in the screen shots of the WhatsApp messages, there is a transmission which is on 1st accused ‘s mobile phone - see this at screenshot 106 and 107 - which is exactly her name and address. In the screenshots taken from one of the mobile phones seized from the 2nd accused contains the same information. You can see that at screenshots 62 and 63. That image can be seen on the printout of the screenshots of one of the Sim cards found in the black LG mobile phone. In this regard, attention is drawn to pages 389 and 390. The image also appears at pages 392, 393, 394 and 395 and the identity card of 2nd accused appears at pages 396 and 397 and 398.

41. Someone armed with the information of 1st accused communicated with DHL on 3 August 2018. There is no evidence that the person who contacted DHL and gave that information was either 1st accused or 2nd accused and there is no evidence as to how that information got into the hands of whoever it was that contacted DHL to effect a change as to the address, phone number and name of the consignee. What is known is that on that day the phone number given by the person who contacted DHL purporting to be the sender of the parcel was not the phone number of 1st accused. 1st accused ‘s number was admitted to be 5984 1513. The number given by the caller claiming to be the consignor to DHL was 6538 9957. That number is also not one of the numbers admitted to be the numbers of the 2 mobile phones found in the possession of 2nd accused.

INDICTMENT

42. Both accused face a single count of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

PRINCIPLES

TEST FOR CASE TO ANSWER

43. The principles which govern the determination of whether or not there is a case to answer are well-known. They are, with respect, perhaps best articulated by the Court of Appeal in AG v Li Fook ShiuRonald [1990] 1 HKC 1 where it was said of what is required of the Judge:^{^[19]}

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future. R v Galbraith [1981] 1 WLR 1039 applied.
If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:
(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;
(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;
(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concluded that a jury could, may or might so be satisfied, he will rule against the submission or application.”

These principles have been widely regarded as articulating the same test as R v Galbraith [1981] 1 WLR 1039, 73 Cr App R 124. That was articulated in HKSAR v Wu Wing Kit & Ye Fang (No 2) [2015] 3 HKLRD 533, §127.

44. These principles recognise the primacy of the jury as the tribunal of fact and recognise the high degree of respect which must be accorded to that primacy. This is also articulated with unmistakable clarity in R v Galbraith (above). The principles demand of the Judge a high degree of rigour in applying the principles perhaps particularly when determining that there is no case to answer. The approach should as follows:^{^[20]}

(1) It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt; it is not for the Judge to predict what the jury will find.
(2) If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.
(3) Questions of credibility and weight must, in all but exceptional cases, be determined by the jury. For the purposes of argument, the [prosecution] case must be taken at its highest.
(4) Where the [prosecution] case depends on inferences, the focus is on whether the evidence, if accepted by the jury, establishes facts that are capable of supporting those inferences. Whether those inferences should be drawn, or not, is also a matter for the jury.

This is not a case in which credibility is material except in the most minor and, for the purposes of these reasons, irrelevant way.

45. These principles involve no exercise of discretion. If the state of the evidence falls short of the standards which I have articulated, bearing the manner in which the analysis must proceed, then there is only one conclusion: that there is no case to answer. If it does not fall short in this manner, the case must proceed to the jury.

46. The nature of the evidence in this specific case is that essentially the primary facts are largely uncontroversial and the most important issue will be whether the jury can infer from those primary facts that the elements of the offence (as to which see below) in respect of each of the accused might be proved to the satisfaction of the jury.

ELEMENTS OF THE OFFENCE

47. Section 2 of the Dangerous Drugs Ordinance provides two definitions which are germane to the issues to be decided in this case. They are:

(1) “trafficking” (販運), in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and
(2) “traffic in a dangerous drug” (販運危險藥物) shall be construed accordingly;

48. The definition lists a number of acts which are considered to be trafficking. In HKSAR v Lung Cheuk Tong [1999] 4 HKC 179, the Court of Appeal (Chan CJHC, Leong & Wong JJA) held that section 2 of the Dangerous Drugs Ordinance “included” rather than “was” certain acts. The court observed that the legislation was meant to not only explain the meaning of “trafficking”, but to extend its meaning to cover some acts which would not be regarded as trafficking in the ordinary sense. In order to understand the legal meaning of “trafficking”, one had to consider its ordinary meaning as well as the statutory definition. That might arguably be true in relation to importing or exporting or possession for the purpose of trafficking, but many of the acts which are explicitly identified in the definition would come within any realistic definition of trafficking. Further, some of the acts included in the definition could be said to overlap. Perhaps the overriding sense that it be taken from this statutory definition is to leave the community in no doubt that the law takes a wide view of the notion of trafficking.

49. Further, in HKSAR v Akhemetzyanova [2012] 5 HKLRD 708 the Court of Appeal (Stock V-P, Lunn JA & McWalters J) held that many of the acts encompassed within the definition of “trafficking” in section 2 of the Dangerous Drugs Ordinance could be undertaken by a consumer of drugs and the definition is not intended to convert acts done by the ordinary consumer into acts of drug trafficking. The Court held that acts such as storage of dangerous drugs or transportation of them may not be regarded as an act of trafficking unless accompanied with a further intention. As the Court observed in HKSAR v Akhemetzyanova, what transforms that transporting or conveying of drugs or storage of the drugs into actual trafficking of the drugs the purpose for which the transportation or storage takes place. It follows from that proposition that it is incumbent on a court of trial to identify with precision the act or acts (the latter being relevant where there is an overlap) said to constitute acts of trafficking in the instant case and whether there is an accompanying intention.^{^[21]}

50. In HKSAR v Akhemetzyanova (above) considered what was meant by dealing in or with a dangerous drug. The Court observed: ^{^[22]}“Whether a particular form of possessing a drug constitutes dealing with the drug would depend on the act involved and the purpose or objective of the act.” As to the act involved, the Court said: ^{^[23]}“Generally speaking, to constitute drug trafficking, the act of dealing with the drug must suggest that a third party is involved, for example, carrying or delivering the drug for another person. Another type of trafficking is possessing a drug for the purpose of trafficking. In this connection, the prosecution does not have to prove any act of dealing with the drug or other acts. As long as the accused is proved to have possessed the drug and have had the intention and ability to use all or part of drug for trafficking purposes, then he is guilty of drug trafficking.”

51. The critical parts of the definition of trafficking which are relevant to this case are “otherwise dealing in or with the dangerous drug”.

52. It is of assistance to examine the authorities to consider the scope of dealing in or dealing with a dangerous drug. In Wong Yin Yu v R [1972] HKLR 6, the appellant was found to have a locked room in her residence in which a large quantity of dangerous drugs was stored. The Full Court (Huggins, McMullin & Pickering JJ) considered the meaning of ‘dealing in’ and ‘dealing with’; the court having accepted that ‘dealing with’ is not necessarily the same thing as ‘dealing in’:^{^[24]}

“What amounts to a ‘dealing with’ dangerous drugs is not easy of definition but in a particular case it will generally be comparatively simple to say whether there has been a dealing with drugs or not. We agree with [Counsel for the appellant] that the offence of possession of dangerous drugs for the purpose of unlawful trafficking is not necessarily committed by every person who is guilty of unlawful possession: if it were, there would be no necessity for creating a distinct offence. It follows that a person who, having taken unlawful possession of dangerous drugs, has no intention other than to retain them indefinitely is not guilty of possession for the purpose of unlawful trafficking. Even if he intends to handle them from time to time in order to clean the room or to gain access to something which is obstructed by them, he does not thereby become guilty of the more serious offence.”

53. One example of the conduct encompassed in the phrase dealing in dangerous drugs is to be seen in R v Chan Kim Wing CACC 199/1988. In that case, the Court of Appeal (Yang CJ, Silke VP and MacDougall J) held that the act of the appellant of being juxtaposed to another who had the drugs and about to take possession of those drugs was, as Silke VP put it, “Given that the evidence of the police officers was capable of belief, then their evidence was sufficient to show that at the very least a dealing in drugs which is part of the definition of the word ‘trafficking’.^{^[25]} What is significant about the notion of dealing in identified by the Court of Appeal in that case is that it is not necessary that the person who is dealing in the dangerous drug be in possession of the drug or a container containing the drug. In this connection, one goes back to the notion in HKSAR v Lung Cheuk Tong (above) that the concept of criminal liability for trafficking includes might include not specifically encompassed in the definition in section 2 of the Dangerous Drugs Ordinance. In ordinary commercial life, many people deal in commodities and rights without ever physically touching or coming into possession of the thing in which they deal.

54. The issues raised in this case are specifically germane to the position of 2nd accused in the present case because he was arrested before he could take possession of the DHL parcel.

55. As the authorities make plain, state of mind which must be proved in respect of an accused who is charged with trafficking upon the basis that he or she was dealing with or in a dangerous drug is that it was dealt with for the purpose of trafficking the drug to another or others. There is no evidence that the quantity of drug was specifically known or that the quantity was known to either accused to be a large quantity.

56. The prosecution must prove that each accused intended to procure a dangerous drug or intended to deal in or with a dangerous drug. In this regard, it is not necessary to prove that the accused specifically intended to procure or otherwise deal in or with a specific dangerous drug: R v Tam Chun Fai [1994] 2 HKC 397, 401-402.

57. The accused on a charge of trafficking must be proved to have known that he was trafficking or intended to traffic in a dangerous drug: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369, §36-38.^{^[26]} Accordingly, in the case of both 1st accused and 2nd accused it must be proved that they intended to receive the parcel knowing that it contained a dangerous drug. It is not necessary for the prosecution to prove that the accused knew the specific nature of the drug.

Evidentiary aspects of the determination of a case to answer

58. Although it should go without saying, in determining whether there is a case to answer, it is necessary to use the evidence in the permitted manner. This is of critical importance in this case because the WhatsApp material is an out-of-court assertion. It may not be used to directly prove of the truth of what is asserted. That does not prevent inferences being drawn from these out-of-court assertions: Walton v R (1989) 166 CLR 283, 38 A Crim R 276.^{^[27]}

59. I have separately considered the case of each accused the evidence using only the evidence admissible against that accused.

ANALYSIS

60. The evidence adduced by the prosecution in the present case is clear and for the most part wholly uncontroversial. It is well capable of belief by the jury. There are no issues of credibility which are relevant to the determination of whether there is a case to answer. The real issue is the conclusions to be reached in respect of both accused.

61. It is critical to bear in mind at all times that the parcel in question is no ordinary parcel. It contains a dangerous drug valued at over $400,000. Undoubtedly it was the desire of both the sender and the ultimate recipient in Hong Kong parcel be received without the involvement of law enforcement. A reasonable reading of the first 3 attempted deliveries is that the intended Hong Kong recipient was not at any of the addresses given, but was intending to receive the parcel in the vicinity of but outside those addresses. However, for some reason, given the obvious peril that the recipient would be in if the delivering agency happened to be, in reality law enforcement, it is, perhaps, understandable that there was an element of skittishness on the part of the recipient or recipients.

62. There was evidence given by the security manager of DHL that there is a parcel tracking system operated by that company so that dip into the parcel, armed with the airway bill number can track the progress of the parcel. There is no evidence as to whether or not that facility was ever used and, if so, what information was displayed on the system. However, it is abundantly clear that by the calls purporting to be the sender instructing the parcel to be variously sent to Delex Armstrong and finally Ko Wai Kit that those concerned with the “safe” delivery to the “right” hands in Hong Kong was aware that delivery was not proceeding as desired.

63. It is evident that by the time of the 4th and 5th delivery that those concerned with the illicit delivery of the parcel appreciated the need for the parcel to go to a real address with a real phone number and a real person to receive parcel. Not only that, if that method was to be tried, those concerned with the illicit delivery needed to be sure that the real person to receive the parcel at the real address had not only to be a person with those qualifications but also sufficiently trustworthy to pass the parcel to the real intended recipients. The person who actually physically received the parcel had to have the airway bill number to give to the DHL delivery person. It goes without saying that delivering a parcel to a randomly selected person simply would not work.

64. The involvement of 1st accused and 2nd accused appears to start some days before the actual delivery. We see 1st accused sending address details which happen to be her address details to 2nd accused by WhatsApp communication. We see her sending what appears to be her identity card details in the same way. There is no evidence in the WhatsApp part of the communications between 1st accused and 2nd accused of any request to do that but given the frequent telephone contact we see as between the mobile phone of 1st accused and one or other of the mobile phones of 2nd accused, it would be open to the jury to infer that the request may have come through that means. The one thing that is clear is that there is no WhatsApp request of that nature.

65. There is clear evidence that 2nd accused sent a series of numbers which just happened to be the DHL airway bill number to 1st accused. Clearly, 2nd accused must have got that information from somewhere. Putting all of that together would entitle a jury to conclude that 2nd accused provided assistance the ultimate recipient of the parcel by nominating a trusted recipient and address. Some control was retained by giving a phone number other than that admitted to be 1st accused’s. Even that had to be changed in relation to the delivery for 7 August 2018. In providing the address and name of 1st accused as the place and person to deliver the parcel, 2nd accused was clearly providing a cutout to avoid any liability if there were law-enforcement problems. It was neither his name nor address where the parcel was going to.

66. In addition to this, timing is absolutely critical. It is to be recalled that there was a request on 6 August 2018 that the parcel be delivered between 11 am and 1 pm on 7 August 2018. The person who made the request was a male - which would eliminate 1st accused. The phone number given was not known to be a phone number of 1st accused nor 2nd accused. It is not unreasonable to conclude that is not possible to prove to the criminal standard that the caller who made the request on the evening of the 6th for the delivery between 11 am and 1 pm on the 7th was 2nd accused.

67. However, what is of critical importance is that at about the time nominated delivery (11 am to 1 pm) on the 7th, 2nd accused turns up at the residence of 1st accused and is seen going in and out of the building in which that residence is situated and his image was captured in that regard by CCTV. That is circumstantial evidence which the jury would be entitled conclude, puts 2nd accused as a person obviously anxious to receive the parcel.

68. Pausing there for a moment, on no occasion did 2nd accused ever admit that the mobile phones found in his backpack were his. There is circumstantial evidence on the CCTV of his 2 journeys to the residence of 1st accused, which shows him using a mobile phone looking remarkably like that of the seized phones. Of all of the inferences that the jury is likely to find the easiest to draw it is that the phones in the backpack seized from 2nd accused must be his phones.

69. In my judgement, the agreement by 1st accused to allow her name and her address (albeit, at least not initially, not her phone number) suggest she was a willing partner in this enterprise to receive the illicit package. It is clear that her conduct as recorded on her own phone would suggest an anxiety to receive the parcel by her numerous calls to the DHL hotline which were each accompanied by numerous calls buy her to one or other of the numbers used by 2nd accused. That carries with it the possible implication for the jury that not only was she highly anxious about the parcel, but also that she was providing information as to the state of play with respect to the parcel to 2nd accused. If this was truly a baby chair and, most significantly, nothing else, it is difficult to see how the anxiety exhibited by the series of phone calls and changes of arrangement suggest other than knowledge of the illicit nature of the contents of the parcel. Here is a woman who has agreed to receive a parcel from, apparently, a complete stranger and appears to have agreed in the context of consistent anxiety concerning its delivery.

70. In my judgement, it would be open to the jury to conclude that 1st accused was a party to the change of address and name. It is open to the jury to conclude that this was at the instigation of 2nd accused and this is supported by the exchange of telephone and, more particularly WhatsApp messages preceding the delivery. The real issue for the prosecution in relation to both of the accused is knowledge. I am acutely aware that the conduct of 1st accused once she was intercepted by the customs officers is consistent with surprise on her part that she had been the party to a delivery of an illegal substance. She consistently denies knowing what was in the parcel some evidence, but the more cogent evidence in relation to her is her almost immediate willingness to participate in a further controlled delivery. That is not diminished by the fact that events overtook the controlled delivery as a result of 2nd accused turning up at her residence before that could be put in hand. On the other hand, her conduct in lending both her name and her address to the receipt of a parcel is capable of supporting the inference that she knew perfectly well what was inside. As already indicated, it is not necessary that she know it is methamphetamine hydrochloride. All the prosecution has to prove is that she knew was dangerous drugs. Given the quantity involved in the value and the circumstances she lent her name and address to the enterprise, an available inference for the jury to draw, if they were prepared to draw it, is the conclusion that she knew that there was dangerous drugs in the parcel was that she intended that receipt on her part to be for unlawful trafficking: in other words, to pass it on to somebody else as opposed to self-consumption.

71. I readily accept that there are other inferences which are capable of being drawn in favour of 1st accused. The most obvious of these is that she was an innocent dupe grievously and sorely used by others. However, in the circumstances, I think the jury could conclude that she was a knowing recipient of the parcel and she was by that act dealing in or dealing with a dangerous drug within the definition of trafficking in section 2 of the Dangerous Drugs Ordinance. In my view, although it is not perhaps the strongest circumstantial case that has ever been seen in these courts, applying the test which the law requires me to apply, I conclude that there is a case to answer against 1st accused.

72. In my judgement, the case against 2nd accused is a compelling circumstantial case. In my judgement, the jury could readily conclude that 2nd accused was recruited to find a trustworthy recipient to receive the parcel. I use the word “trustworthy” in the context I used in my earlier discussion, the difficulties facing those engaged in the illicit delivery into Hong Kong of this valuable (but dangerous) parcel. He plainly enlisted 1st accused by obtaining from her, her address and name and identity card. Having received that information, it was passed other persons who claiming to be the sender of the parcel, gave these details to DHL for ultimate delivery of the parcel. 2nd accused then passed to 1st accused the airway bill number of the parcel. The jury could readily infer that he did not get this number by accident. Whether he was the ultimate recipient or he was just a flunky whose job it was to obtain the parcel and pass it to others is of no moment. What is critical is not so much that he passed the airway bill information on to 1st accused but that he had it in the first place. That is capable of being viewed by the jury as evidence that he was vitally concerned in the delivery to a trustworthy place in Hong Kong of the parcel. The fact that 2nd accused turned up at the residence of 1st accused not once but twice on the 7th and on both occasions he turned up were possible times for the delivery of the parcel is also strong circumstantial evidence, which put together with the other circumstances strongly suggests that he was vitally concerned in the delivery of the parcel and to this effect, instigated 1st accused to achieve this. Applying the recognised test outlined above, I am of the view that the jury could accept that 2nd accused was dealing in dangerous drugs. In the event that the jury concluded that this was his intention, the circumstances are also redolent of him intending to do so for unlawful trafficking.

73. Accordingly, I ruled that there was a case to answer in relation to both accused. Looking a little bit forward, although it is not strictly necessary for the determination of whether or not there is a case to answer, it seems to me that in the summing up, it would not be helpful for the jury to embark on a long list of circumstances which might be characterised as dealing in or dealing with a dangerous drug. What I propose to do, subject to consultation with counsel, is simply direct the jury that if they were sure that one or other or both of these accused were doing the prosecution says they were doing then they were dealing in or dealing with. I also do not think it appropriate to strictly delineate between dealing with and dealing in separate concepts. It seems to me that both conceptually and practically there is substantial overlap between the concepts and so I do not propose to make such a distinction. Indeed, given that it least the case for 1st accused as I understand it is focused solely on whether she knew there were to be drugs in the parcel, fine distinctions between dealing in and dealing with seem to me to be not important. The case for 2nd accused as I understand to be is that he denies being involved in the arrangements for the parcel to be sent to 1st accused - he relies in this regard on his assertion under caution that he was only there to chat with his friend - the distinction, to the extent there is one, between the 2 concepts does not seem to be of great importance. I will direct jury accordingly.

	(Andrew Bruce, SC)
	Deputy High Court Judge

Mr CHEUNG Kam-shing, Adonis, Counsel on fiat for DOJ / HKSAR, for Prosecutions

Ms CHAN Man-yee, Cannise, instructed by Cheung & Liu, assigned by D.L.A., for the 1^st Accused: KO Wai-kit

Mr WONG Chi-wai, Philip, instructed by Krishnan & Tsang, assigned by D.L.A., for the 2^nd Accused: HUI Wai-kit

[1] Admitted facts, dated 8 January 2020, §2.

[2] The address was curiously spelled and that formed part of the narrative related to the court by PW1.

[3] Admitted facts, dated 8 January 2020, §27. The Government Chemist Certificate is Exhibit P 67.

[4] Admitted facts, dated 8 January 2020, §6-11 and the testimony of PW2. Strictly speaking the number of unsuccessful controlled deliveries counts two such deliveries on one day as one unsuccessful delivery.

[5] Produced pursuant to the Admitted facts, dated 8 January 2020, §2.

[6] Admitted facts, dated 8 January 2020, §8.

[7] Admitted facts, dated 8 January 2020, §9.

[8] Admitted facts, dated 8 January 2020, §10.

[9] Admitted facts, dated 8 January 2020, §12.

[10] Admitted facts, dated 8 January 2020, §13.

[11] Admitted facts, dated 8 January 2020, §1.

[12] P 27.

[13] Admitted facts, dated 8 January 2020, §25 (a).

[14] Admitted facts, dated 8 January 2020, §23-24.

[15] Admitted facts, dated 8 January 2020, §25 (b).

[16] Admitted facts, dated 8 January 2020, §26.

[17] Ibid.

[18] Exhibit P 80

[19] [1990] 1 HKC 1, 12-13. The reference in the passage quoted to Galbraith is, of course, a reference to R v Galbraith [1981] 1 WLR 1039, 73 Cr App R 124.

[20] This list has been adapted from R v Woods [2019] NZHC 122, §20.

[21] This proposition is supported in HKSAR v Leung Sing Chungand Another CACC 143/2011, 4 March 2013. See also: HKSAR v Akhemetzyanova [2012] 5 HKLRD 708, §33 and §44.

[22] HKSAR v Akhemetzyanova [2012] 5 HKLRD 708, §28.

[23] Ibid

[24] [1972] HKLR 6, 13.

[25] CACC 199/1988, 8 September 1988, page 3.

[26] The decisions of R v Tam Chun Fai (above) and HKSAR v Mohammed Saleem (above) were followed by the Court of Final Appeal in Lai Kam Fat v HKSAR [2019] 6 HKC 293 in the context of the decision by that Court as to whether in a charge of conspiracy to traffic in dangerous drugs it is necessary for the prosecution to prove that the accused knew the nature of the dangerous drug which was the subject of the conspiracy.

[27] Walton was followed in Bolton v Western Australia (2008) 180 A Crim R 191. Pertinently, Bolton was concerned with the admissibility of ICQ conversations between the accused and the alleged victim prior to an alleged rape. Walton was also followed by the Court of Final Appeal in Wong Wai-man & Ors v HKSAR (2000) 3 HKCFAR 322, [2000] 3 HKLRD 313, 3 HKC 733.

HCCC 252/2019

[2020] HKCFI 3001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

________________________

BETWEEN

	HKSAR
and
	KO WAI KIT	1st Accused
	HUI WAI KIT	2nd Accused

________________________

Before: Deputy High Court Judge Bruce, SC

Dates of Hearing: 2, 3, 6, 7 January 2020

Date of Reasons for Ruling: 1 December 2020

________________________

RULINGS

________________________

REASONS FOR RULINGS:

(1) admissibility of statement attributed to 2nd accused

(2) objection by 2nd accused to the admissibility of WhatsApp messages

(3) application for severance of Count 1 and Count 2 of the Indictment

Introduction

1. Objection is taken on behalf of 2nd accused to the admissibility of

(1) the admissibility of a statement attributed to him which the prosecution seeks to produce in support of their case;
(2) certain WhatsApp messages said to be an exchange in that medium of messages between the 1st accused and 2nd accused; and

In addition, 2nd accused applied for severance of Count 1 and Count 2 on the indictment. There was another application in relation to the admissibility of the CCTV material. This was not pursued.

2. Each of these issues was raised and considered as preliminary matters prior to the trial of the accused. At the end of submissions by counsel for the parties, I gave rulings on each of the issues raised as follows:

(1) verbal statement of 2nd accused given to CO 1408 inside Room 1114 is admissible;
(2) post-record of the verbal statement in (1) is inadmissible;
(3) investigations and related matters following the post-record are admissible;
(4) the WhatsApp messages depicted in the hearing bundle presented for the admissibility hearing on that topic are admissible; and
(5) I declined to sever Count 2 from the indictment.

At the time I gave these rulings, I indicated that I would supply my reasons for those rulings in due course. These are those reasons.

The Indictment

3. The indictment dated 29 July 2019 as presently drafted contains 2 counts. The Count 1 which is against both accused alleges that at premises at Cheung Wang Estate in Tsing Yi, New Territories, they trafficked in a dangerous drug namely 796.2 g of a crystalline solid containing 776.3 g of methamphetamine hydrochloride. The Count 2 on the indictment is a charge against 2nd accused only. It alleges possession of a dangerous drug at the Customs Office, Hong Kong International Airport. The quantity of drug is very small. The drug in question is also methamphetamine hydrochloride.

4. Both accused were arraigned on this indictment and the both accused pleaded not guilty to Count 1. 2nd accused pleaded not guilty to Count 2.

Admissibility of statement attributed to 2nd accused

Factual background

5. 2nd accused objected to the reception into evidence of a verbal statement by him on 7 August 2018 to CO 1408, Mr Tang Sze Hon in Room 1114, Wang Sin House, Cheung Wang Estate, Tsing Yi in the New Territories. He also objected to the reception into evidence of the post-record of that statement and to evidence of the investigations into him later on 8 August 2018 at Customs & Excise Service premises at the Hong Kong Airport.

6. On examination of the parcel found to contain concealed methamphetamine hydrochloride in substantial quantities. The parcel arrived via DHL and Customs & Excise Service decided to undertake a controlled delivery package to the addressee. There were a number of unsuccessful attempts at this and persons unknown contacted DHL change the addressee. By the time of the 5^th controlled delivery, the addressee had been changed to the name and address of 1st accused. There was evidence, which I held to be admissible of substantial WhatsApp communication between mobile phones in the possession of 1st and 2nd accused respectively and the inference which is available from that communication and the circumstances surrounding it is that is that 1st accused was to receive the parcel and 2nd accused was to collect it. In any event, on 7 August 2018, a customs officer disguised as a staff member of DHL attended at the address of 1st accused and delivered the parcel. Shortly after this, 1st accused was intercepted and arrested by Customs & Excise Service officers. She indicated to them that another person having the same name as that of 2nd accused would collect the parcel from her. The question of 1st accused was asked by inspector Chow who was the officer in charge of the case.

7. In the event, 2nd accused did attend at the premises of 1st accused shortly after her interception and arrest. He arrived at 8:15 PM. 1st accused was asked when 2nd accused entered the premises whether he was the person that she was referring to as the person who was to collect the parcel. She indicated that he was. 2nd accused was himself intercepted and arrested. He testified that his question of 1st accused and the answer were capable of being heard by 2nd accused.

8. When CO1408 arrested 2nd accused, he told him that he was suspected of contravening the Dangerous Drugs Ordinance. 2nd accused was then told he was arrested and he was caution. He was asked whether he understood and his answer was “Understood”. The officer testified that he then asked 2nd accused “What is your name?” 2nd accused answered him “Hui Wai Kit”. The officer then asked 2nd accused what he was doing at the premises and the answer was “[To] find (my) elder sister to chat.” 2nd accused was asked for the name of his sister and he answered “Ko Wai Kit” which is, of course, the name of 1st accused.

9. Further questions were asked about the finding of a bottle in the backpack of 2nd accused which are not presently relevant.

10. At 9:05 PM, CO1408 took a post-record of the answers to questions related above. It was common ground that the post-record (P 61) was an accurate record of what 2nd accused said to CO1408. It included a record of not only the interception but also a record of the other topic which 2nd accused was asked about. In relation to both the matter the subject of objection and the other matter the accused was cautioned in identical terms and the caution was written down in the post-record in those terms. In other words, at the time that the accused came to sign his name to the post-record he had heard caution twice on a verbal basis and he had read it and had it read to him by CO1408. The post-record concluded with the accused being asked whether or not he wished to make any alteration, correction or supplement post-record indicated that 2nd accused indicated to the officer that there was no need to do so. The officer then produced a version of the usual declaration. He then said 2nd accused (and this is recorded in the document) “If you understand and agree with (it), please write (it) down and sign for confirmation.” 2nd accused signed.

11. 2nd accused was then taken back to the office of the Airport Investigation Group of the Customs & Excise Service. At this stage, 2nd accused was more thoroughly searched and a small quantity of ice was found on his person. He was arrested and cautioned in relation to that which was seized and he remained silent. That was the subject matter of Count 2 on the indictment.

The objections

12. Counsel for the 2nd accused objected to the reception to evidence of the verbal utterances of the accused because said that oral response of the accused was a breach of the “spirit” of the Judges Rules 1912. Further, it was contended that the caution which was administered on 2nd accused did not specify which specific offence that 2nd accused was suspected of committing. It was argued that this was a breach of the Judges Rules of 1912 and the Secretary for Security’s Rules and Directions of 1991. Allied to this, it was contended it was unfair that the accused was not informed of the basis of the suspicions of the Customs & Excise Service officers as to 2nd accused’s complicity in the delivery of the parcel. It was also contended that the oral response of 2nd accused did not amount to a confession relevant to the charges that he faces and is therefore inadmissible. The basis of this is that because it was not an admission, it was not an exception to the hearsay rule. It was further contended that the prejudicial effect of the oral response of 2nd accused outweighed probative value in that it might suggest to the jury that 2nd accused is accepting all of the allegations made by 1st accused against him. The basis for this contention is that it was said that in law what 1st accused told the customs officers was inadmissible against 2nd accused.

13. Finally, there was a further allegation that 2nd accused was actually escorted into the premises by customs officers then stationary outside the premises the purpose of guarding those premises and as a result of that accused was under threat when he responded to the caution of CO1408.

14. Although not in his written particulars, counsel for 2nd accused also contended that the results of the search at the officers of the Customs & Excise Service at the Airport was inadmissible because that search had been vitiated by the conduct of the officers at Room 1114.

Evaluation

15. CO1408 testified as did another customs officer and also Inspector Chow, the accused chose not to testify as was his right. The consequence of his not testifying was that there was no evidence to contradict the officers called by the prosecution. In my judgement, each of the officers was transparently honest and I had no hesitation accepting all that they said.

16. I also make the point at this stage that I accept what the Inspector said that when 2nd accused entered Room 1114 they had no idea whether he was the person who 1st accused said would turn up to collect the parcel someone else. Accordingly, it was an obvious necessity to ascertain his identity.

17. Before taking the matter any further, I reject has utterly fanciful the notion that the accused was intercepted outside the premises and taken to the premises. Leaving aside there was not a word of evidence to support this proposition, I accepted the testimony of the prosecution witnesses that there was no guard on the outside. I also accepted that the officers heard the iron grill to the premises being opened and very shortly after that they saw 2nd accused push open the door to the premises. The officers testified that the door was slightly ajar at the time of the entrance by 2nd accused.

18. It is contended on behalf of 2nd accused in relation to the admissibility of as verbal response was the suggestion that the officers did not inform 2nd accused that he was suspected of trafficking in dangerous drugs. The allegation which accompanied the arrest was the bland assertion that he was suspected of contravening the dangerous drugs. The argument on behalf of the accused was that he was given insufficient information put him in a position to make an assessment of the nature and scope of his peril so as to allow him to make an informed decision as to whether speak remain silent. CO1408 testified that the reason that he was not more specific was that the nature of the offence might be levelled against 2nd accused was not something that he was capable deciding. This was a matter, so he testified, for the Inspector.

19. Counsel argued, relying on HKSAR v Pang Ho Yin [2010] 3 HKLRD 515, that the accused had insufficient information to make an informed decision. In HKSAR v Pang Ho Yin, the accused was being questioned about an offence and the questioning moved to a more serious and, in a sense, unrelated offence. The Court of Appeal held, following R v Kirk [2000] 1 WLR 567, that where the police questioned a suspect and that questioning moved from matters concerning the offence for which he was arrested and moved to an offence which was more serious than the one for which he was arrested, they must at least ensure that he was aware of the true nature of the investigation and not under a material misapprehension created by the circumstances of his questioning as to the peril in which he might place himself.[1] The Court of Appeal in Pang Ho Yin held that the failure in the circumstances of that case was no mere technical omission. The Court held that where the focus of the investigation changed there was a real issue as to whether the choice of the accused to speak or to remain silent was an informed one. There is an element of force in the criticism of counsel for 2nd accused in the sense that all the accused new was that he was suspected of an offence under the Dangerous Drugs Ordinance. It was, arguable that it was not for him to fill in the gaps as to which offence the Customs & Excise officers had in mind. Nevertheless, the accused did know is that he was under suspicion of a drugs offence which, on any view, would be regarded as a serious matter.

20. The prosecution relied on the decision of the Court of Appeal in HKSAR v Mistun [2013] 5 HKLRD 256. In that case, which was, by coincidence, a controlled delivery case, the accused picked up a parcel at the post office which was not addressed to him but which contained a substantial quantity of dangerous drugs. The criticism in that case was that the complaint about the investigating officer’s conduct was that he had only alleged that the offence for which he was arrested was an offence against Dangerous Drugs Ordinance. The Court of Appeal held that while it might be preferable to name the drug in respect of which the accused was arrested, but failure to do so should not have led, by itself, or with other points made to the exclusion of the evidence in question. The Court held that the accused had been told in plain and simple terms of the reason for her arrest. It is, perhaps, noteworthy that one of the quorum of the Court of Appeal in HKSAR v Pang Ho Yin (above) was the president of the Court giving the decision in HKSAR v Mistun.

21. For my part, I am sure that 2nd accused knew perfectly well that he was in peril for a drugs offence. He was cautioned in clear terms. I think it would have been preferable to inform the accused that he was suspected of trafficking. The explanation given in the present case that the precise offence was a matter for his superiors is, I must confess, somewhat lame. Nevertheless, the essential message was that 2nd accused knew he was in peril for an offence against the Dangerous Drugs Ordinance which, of itself is serious enough. Most importantly he was informed of his right to speak or to remain silent. That is the object of the caution. His answer as to his identity followed the caution. There is no suggestion that the answer he gave was anything other than voluntary. The underlying rationale of the discretion to exclude an otherwise voluntary statement is a concern which has, at its heart, the notion of fairness.[2] In the circumstances of this case, there was nothing unfair in what happened and is no basis on which the exclusion of an otherwise voluntary statement could be justified.

22. I reject the proposition that what informed the decision of 2nd accused to give the answer that he did was that it was in response to the assertion by 1st accused that he was Hui Wai Kit and was under moral pressure to agree to this. The basis for this rejection is (1) the accused did not give evidence and, accordingly, there was no evidence of what motivated him to say what he recorded as having said; and (2) the assertion by 1st accused was punctuated by the arrest of 2nd accused and, more importantly, the caution immediately following the arrest. Thus, 2nd accused had been reminded of his right to speak or to remain silent and, even if the assertion of 1st accused formed a motivation him saying what he said, the decision to speak was an informed one.

23. It is also contended that the answer given by 2nd accused is not relevant. It certainly is capable of being relevant. Although I would readily accept that the name of the accused was well capable of being proved by the production of his identity card, the admission by 2nd accused of his name tends to connect him more readily with the premises than if he was another person. While it is in fact confirmation of what 1st accused said to the officers, in the event that it becomes necessary to direct the jury about the rule that the out-of-court utterances of one accused are not admissible against another accused, that will be done.

Admissibility of WhatsApp messages

The issues

24. The prosecution seeks to evidence of WhatsApp communications between the 1st and 2nd accused. A Nokia mobile phone with a sim card having the number 5984 1513 was seized from 1st accused. Two mobile phones were seized from 2nd accused. The first was a purple LG mobile phone with the sim card having the telephone number 5981 1033. The other mobile phone was also a black LG phone with dual sim cards bearing the telephone numbers 5519 5285 and 6488 2519. While 2nd accused accepts that the mobile phones were in fact found in his rucksack, there are no admissions that they are his phones. I proceeded upon the basis that it is a reasonable inference that these were 2nd accused’s phones and, in the event of this matter going to the jury, I think that the evidence is well capable of satisfying the jury that that is the only reasonable inference. If I was the tribunal of fact on the general issue, I would have no hesitation in drawing that inference.

25. The means by which the prosecution intend to adduce this evidence is by way of photographs of the screens of the respective mobile phones, which are produced by photographing the mobile phones when they are switched on and the WhatsApp function of each phone is activated.

26. The case for 2nd accused is that the communications are inadmissible hearsay. 2nd accused takes issue with the reliability of the technology which the prosecution says conveys messages. (1st accused does not object to the reception into evidence of this material. This is consistent with her case that the prime mover in this case was 2nd accused and that she was an innocent dupe.) The case for the prosecution is that the screenshots are not being tendered for the purpose of proving the truth of the contents of those screenshots. The case for the prosecution in this context is that the WhatsApp messages are part of the evidence from which it can be inferred that 1st accused agreed to receive a parcel at her residence which happened to contain a substantial quantity of methamphetamine hydrochloride and all of this was arranged through 2nd accused. The WhatsApp messages are not the exclusive mode of proof in this regard but they are an important one.

27. As to the means by which the photographs of the screens of the mobile phones (hereafter referred to as “screenshots”), case for the prosecution is that 1st accused consented to a customs officer photographing various entries displayed on the screen of 1st accused’s mobile phone. As will shortly appear, an important component of evaluating what is seen on the mobile phones in 2nd accused’s possession is to examine the screenshots taken from 1st accused’s phone.

28. In relation to the position of 2nd accused, search warrants were granted to officers from the Customs & Excise Service in respect of the mobile phones seized from the rucksack of 2nd accused. On 18 June 2019, the Customs & Excise Service obtained a warrant to access and search for and take possession of the article namely all the data in the above-mentioned mobile phones. These related to the mobile phones seized from 2nd accused. The first warrant was time-limited as to its effectiveness. It was to be executed by 1 July 2019. The mobile phone of 1st accused was examined on 18 June 2019 which was the date on which the warrant was obtained and, plainly, before that warrant expired. However, a further warrant was necessary to examine the mobile phones of 2nd accused. That was applied for and granted on 3 July 2019 and was, for all practical purposes in the same terms as the previous warrant. The warrant was time-limited but the Customs & Excise Service examined and retrieved the phone data on 2 separate days, both of which preceded the date of expiration.

29. A further warrant was obtained to take screenshots from the mobile phones of 1st and 2nd accused. That warrant was obtained on 9 October 2019. On 16 and 17 October 2019, screenshots were captured from both phones.

30. It is evident from the depositions in this case and the notifications of additional evidence that the screenshots are very numerous. I was given a selection of screenshots of the respective mobile phones in order to make the determination required.

Are the mobile phones which produced images on their respective screens computers?

31. Are the mobile phones which produced the images on their respective screens computers? The answer is that they are. In Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604, Fung J considered the operation of what he characterised as a smart phone in the context of whether certain aspects of its use might form the subject of an offence under section 161 of the Crimes Ordinance, Cap 200. Fung J considered a range of definitions of computers in the context of different statutes and authorities from many jurisdictions. The reason for that was that there is no definition of “computer” which relates to section 161 of the Ordinance. In the result, Fung J particularly relied on the definition in the Online Oxford Dictionary’s meaning of “computer” - namely “an electronic device, which is capable of receiving information (data) in a particular form and of performing a sequence of operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals”.

32. It seems to me that all 3 mobile phones in the present case behave like computers by reference to the definition approved by Fung J in Secretary for Justice v Wong Ka Yip Ken (above). It seems to me that it is appropriate for this Court to take judicial notice of the widespread use of such phones in Hong Kong (and throughout the world).

33. That definition in Secretary for Justice v Wong Ka Yip Ken appears to be entirely apt for the mobile phones in use in this case.

The admissibility of messages via WhatsApp

The operation of WhatsApp

34. WhatsApp is one of many applications commonly found on mobile phones in Hong Kong and elsewhere used for communication of messages in either written or symbolic form (in the context of symbolic form I have in mind the example of what are known as emojis which are visual or symbolic representations of a variety of emotions and are in common use) and the provision of graphic images in the nature of photographs. It is also possible to send audio recorded messages and videos over the WhatsApp system. There are probably many other functions supported by the WhatsApp system but I think it is fair to say that these are the most common. Messages of the kind that I have just described may be forwarded by the recipient to a further person or persons using the WhatsApp system.

35. It is also widely known that WhatsApp operates with respect to many different kinds of mobile phones. The WhatsApp function can be imported onto a mobile phone. Messages can be sent to from a phone onto which WhatsApp is imported to another phone onto which WhatsApp is imported. The system directs the message to the number selected by the sender. That number is usually but not always the number of the sim card. (It can be a another number nominated the recipient. 1st accused actually did this.)[3]

36. The WhatsApp function is in the nature of a computer program. It is almost certainly complex. The nature of the program itself is undoubtedly beyond the knowledge those who use it in Hong Kong.

37. WhatsApp is by no means the only service of the kind I have just described. In my view, judicial notice can be taken of those facts. Judicial notice can also be taken of the fact that many, many people in Hong Kong rely on such a form of communication as between persons or groups of persons. It would be safe to say that on any given day in Hong Kong, millions of such communications proceed using either the WhatsApp system or using one of the other messaging systems.

38. In the context of the extensive use of these modes of communication (including communication via WhatsApp), a person sending a communication (whether text recording visual image or otherwise) sends that message to another mobile phone number. A record may be kept of that message on the WhatsApp system on the sender’s mobile phone. Often, the number of the intended recipient is stored in the contacts function of WhatsApp. This is a means of keeping a list of persons and their phone numbers and possibly other details and this facilitates sending the messages more easily. There is a facility for a person who sends a message of whatever form to broadcast their own details including either a photograph of themselves or some other symbol or representation. That is not compulsory but it is often done. A person receiving a communication on his or her mobile phone receives a text message, symbols or visual representations. That message would reveal the phone number of the sender and if the sender has included a visual representation of themselves. If a reply is sent, then the reply is recorded on the WhatsApp function of the mobile phone of the person sending the reply and, if the reply received that appears on the WhatsApp function of the recipient.

39. It is perfectly possible for the sender to delete a message that has been sent the record of the message on their own phone. For at least some time after the message is sent, it can be deleted on the phone of the recipient. Equally, if the message is received, the recipient of the message can delete the message on their phone but can have no influence on whether there is a record of that message being sent on the sender’s phone.

40. It is a common experience that the sender of the message who claims to be a particular person may not actually be that person. Neither WhatsApp nor, as far as I am aware, any of the other messaging services provide any basis for verification of the identity if the caller or message sender. There is no guarantee that a message sent will, of necessity be received. However, if a person has access to the WhatsApp function of the sender and the same function on the recipient’s phone, it would be possible to determine whether that message has been received. It would be open to compare the text of the message recorded on the sender’s mobile phone with the message on the recipient’s mobile phone. That might provide some information as to whether the message was sent and received accurately. Plainly, if one has access to both the mobile phones of both the sender and the recipient and there is a series of messages sent between them with the message of the sender having a counterpart on the receiver’s phone and so on, then over time if there is a series of exchanges between the parties that may tell you something about the accuracy and reliability of the system. This is important from two standpoints. The first is that it is understood that immediately after the message leaves the mobile phone of the sender the WhatsApp system encrypts the message and, on receipt at the recipient’s phone. Further, it is difficult to imagine how an application on a mobile phone could be in such widespread use unless the users of the system regarded it as reliable. It is reasonable to conclude that such a system if it was unreliable would soon be discarded if things were otherwise.

Principles which govern the use of judicial notice

41. In my opinion, given the widespread use of the WhatsApp system in Hong Kong, it would be appropriate to judicially notice what the WhatsApp system does in its ordinary use in the Hong Kong community. The principles which govern the reception into evidence of a fact or series of facts of which judicial notice may be taken is that whenever a fact is so generally known that ordinary persons may be presumed to be aware of it, a Court may take judicial notice of the fact either without further inquiry if it is satisfied of the existence of the fact, or after inquiry from sources the Court considers to be reliable: Commonwealth Shipping Representative v P and O Branch Service.[4] There are statutory forms of judicial notice which are not presently relevant. There are restrictions on the scope of judicial notice and, indeed, this may be seen from the application of the principles in Commonwealth Shipping Representative v P and O Branch Service (above). In that case, the House of Lords were prepared to judicially notice the existence of hostilities [5](the shipping collision the subject of the proceedings occurred in the middle of World War I) but were not prepared to judicially notice the specific action in that war, which gave rise to one of the ships involved in the collision having military cargo. That said, Lord Sumner made the point:[6]

“My Lords, to require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insist on having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easily become pedantic and futile. Least of all would it be possible to require this detached and blindfold attitude towards events which the course of the late war has burnt into the memories of us all.”

In my opinion, the dividing line which is articulated in the authorities is not always an easy one to draw. As an example, in relation to the geography of a locality, general knowledge might be susceptible to proof by way of judicial knowledge but specific detailed knowledge might not[7]. In the end, the discrimen appears to be notoriety.

42. Judicial notice is not a static concept and the facts or series of facts which may be judicially noticed may change over time as the community changes. Attitudes of the community and the judiciary to matters such as computers and the Internet have changed radically in the past 30 years. In 1993 in R v Shephard [1993] AC 380, the House of Lords was concerned with the production in the shoplifting case by the prosecution of a till roll.[8] The roll had been produced by what appears to have been a fairly basic computer system. Lord Griffiths, in delivering a speech in which all of the Law Lords present concurred observed:

“Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”

Shepherd was, at its heart, a reliability case. However, what it also demonstrates is a recognition that an expert witness is not necessarily required to establish what a particular computer does. As Lord Griffiths made plain, much depends on the circumstances. The fact that Lord Griffiths held that proof was required of such facts does not, in my opinion, necessarily describe the mode of proof. In Daly v Sheikh [2004] EWCA Civ 119, §46, it was held by the English Court of Appeal that it is possible in any event to take judicial notice of the widespread knowledge that computer use can be reconstructed from the hard drive, even after files have been wiped off the computer.

43. It is fair to say that there is a discernible time lag between community acceptance of such matters and those being susceptible of judicial notice. The scope of judicial notice of the operation of the WhatsApp system must be, of necessity limited. It is unlikely in the extreme that all but a very small number of community members would have any real appreciation of the internal operation of the extraordinarily sophisticated mobile phones available today, both in terms of the hardware and the software which drives them. Still less would there be many in the community who would have the relevant knowledge of the technology which provides the wireless link between such phones. The manner in which the WhatsApp system operates in terms of the means by which it operates on an individual phone and then provides a facility to communicate with another phone is also not susceptible to judicial notice. That would, of course, include the algorithm or algorithms which operate the encryption system which operates inside the WhatsApp system. All of that would be necessary to be established by those with specialist knowledge and recognised by the courts as possessing that specialist knowledge. However, subject to the reservation the parameters of the operation of the WhatsApp system which has been described above are, in my opinion, well capable of being judicially noticed.

44. One possible objection to the use of judicial notice is that it may be used without a party or the parties being aware that the relevant tribunal of fact was considering the employment of judicial notice as a mode of proof for various facts. In the instant case, I indicated to the parties that I was minded to consider the operation of WhatsApp.

45. The next issue for consideration is whether, and if so, how such system operated in relation to communications between the 1st and 2nd accused. However, before getting to that issue, it is necessary to appreciate the purpose for which the prosecution seeks to prove the communications or purported communications between the 1st and 2nd accused.

46. These concerns are also relevant when considering the admissibility and, if admissible, impact of such communications. In this regard, section 22A of the Evidence Ordinance, Cap. 8 regulates aspects of the product of a computer. In this regard, section 22A(1) of the Ordinance provides:

“(1) Subject to this section and section 22B, a statement contained in a document produced by a computer shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if-
(a) direct oral evidence of that fact would be admissible in those proceedings; and
(b) it is shown that the conditions in subsection (2) are satisfied in relation to the statement and computer in question.”

47. The first issue is to determine whether section 22A is engaged. In S-J v Lui Kin Hong (1999) 2 HKCFAR 510 and HKSAR v Lau Shing ChungSimon (2015) 18 HKCFAR 50, the Court of Final Appeal held section 22A is only engaged when the purpose for which the out-of-court assertion on the computer is tendered is to prove the truth of that assertion. Stock NPJ observed in HKSAR v Lau Shing Chung,[9]

“[there is a] misapprehension as to the ambit of the rule against hearsay testimony. The misapprehension is that the rule always forbids evidence of what somebody has declared, orally or in writing, out of court. That is not the rule. The rule is that, subject to certain common law and statutory exceptions:
… an oral or written assertion, express or implied, other than one made by a person in giving evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”

48. Section 22A(11) explicitly limits the application of the section in any event by providing:

“(11) Nothing in this section affects the admissibility of a document produced by a computer where the document is tendered otherwise than for the purpose of proving a fact stated in it.”

49. Even though the position of the prosecution is that section 22A is not engaged case because the documents (that is, the screenshots) are tendered otherwise than for the purpose of proving a fact stated in those screenshots, it is necessary to establish the reliability of the system which produced the screenshots. On no account is suggested that the screenshots themselves are an inaccurate depiction of what appeared on the screen of the respective mobile phones. It is necessary to establish that the messages passing between the 3 mobile phones in question past accurately. If that is established it would be necessary in due course to establish that 1st and 2nd accused were the authors of that message. That is not issue in the present application. It is at least implicit in the observations of Lord Hoffman in S-J v Lui Kin Hong (above) that the reliability of the system is a matter which has to be proved Section 22A(2) of the Evidence Ordinance provides standards for computers which produce material which falls for consideration under section 22A. Section 22A(2) requires:

(a) that the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or individual;
(b) that the information contained in the statement reproduces or is derived from information supplied to the computer in the course of those activities; and
(c) that while the computer was so used in the course of those activities-
(i) appropriate measures were in force for preventing unauthorized interference with the computer; and
(ii) the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.

50. Of course, section 22A(2) does not directly apply to the computers which underlie the operation of the WhatsApp system. Indeed had 22A(2) applied, there is a means of proof by certificate in that section which might have established that the system was operating reliably. Nevertheless, section 22A(2) provides meaningful guidance as to what should be considered in determining whether that system was reliably sending and receiving communications between the mobile phones in question. The question then arises as to what evidence might provide a basis for saying that the system was operating to achieve this purpose. In answering that question, one must first recognise as has been recognised since R v Shepherd [1993] 2 WLR 102 where the House of Lords made plain that the nature of proof of this issue rather depends on the nature of the computer. In that case, computer in question was nothing more than a glorified calculator and it was open to the prosecution to call a store detective to say that the “computer” was operating properly. A similar view might be seen in East West Transport Ltd v DPP [1995] Crim LR 642. It would be open to the prosecution, conceivably, to call expert evidence to prove that the system was producing reliable communications between the relevant mobile phones in the present case. However, it seems to me that if, as it is accepted by the parties, judicial notice may be taken of the operation of the WhatsApp system.

51. It may be objected that it would be too difficult to explain the fine detail of the law against hearsay, the true scope of that law and the permitted use that the jury would be allowed to make of that evidence in this case. It may also be objected that against that background, it would be too difficult to explain to a jury any impermissible use that the evidence may be put to. While it is conceivable that there might be cases where this is true, I am firmly of the view that this is not one of them.

Reliability

52. The fact that the WhatsApp messages are capable of being admitted on the basis that although they are hearsay, they do not violate the hearsay rule does not mean that the issues about reliability which are part of the concerns underlying section 22A when it is necessary to engage that provision simply go away. However, there is an intensely practical content to that concern in cases where one party or the other seeks to reduce WhatsApp messages in criminal proceedings for a purpose where the section is not engaged. In this regard, given the wide range of computers which might arise for consideration and the purpose for which they are used, the nature of that evidence must, of necessity vary. In S-J v Lui Kin Hong (above), Litton PJ emphasised the essentially practical and common-sense approach that the courts must take to this issue. There will be times when it will be necessary to call independent evidence of the operation of the computer where something is being measured. An example of this may be seen in East West Transport Ltd v DPP (above).

53. It was submitted by counsel for 2nd accused that reliability must be proved beyond reasonable doubt. He used the analogy of the requirements for the reception in evidence of admissions and confessions. The standard of proof in relation to admissions and confessions may be explained in historical terms.[10] For my part, I think the standard of proof for the facts which underly the determination of the admissibility of evidence in criminal proceedings should be on a primafacie case basis and only circumstance in which the facts which must be proved beyond reasonable doubt is in relation to the admissibility of admissions and confessions. There is powerful support for the lesser standard being required in matters such as the admissibility of evidence of the acts and declarations of a co-adventurer;[11] proof of the underlying facts (such as expertise) in the determination of the admissibility of an expert’s evidence.[12] There are, doubtless other examples. However, the issue is academic in the present case.

54. However, in the instant case the use of WhatsApp for communicating is so well-known that, at least so far as admissibility is concerned it is difficult to see how expert evidence is necessary. In my opinion, so far as reliability is concerned all that is necessary in the present case is a visual comparison. This is because in the instant case, many on the entries appearing on 1st accused’s phone also appear on one or more of the phones found in the possession of 2nd accused and vice versa. Pertinently, we see a number which happens to be the same as the relevant airway bill being sent from one of the phones on 2nd accused’s possession to 1st accused. We see the same number appearing on 1st accused’s phone. 1st accused sends a visual image of her ID card and her address as depicted on her phone and is seen on one of the phones on 2nd accused’s possession. The image of the ID card is a complex one and it is replicated on one of the phones on 2nd accused’s possession. The apparently identical images could not be explained as random. There are other examples. Generally speaking, where the message in question is seen on both the sending smart phone and the receiving one and any reply is also seen on both phones then it is a fair inference that what was sent was received and at least in this regard the fact that a message appears in the same terms on the sender’s smart phone and the receiver’s smart phone is clearly at the very least prima facie evidence that the smart phones in question are working appropriately for at least the purpose of communicating by WhatsApp. In the present case I am sure that the coincidence of messages is such as to admit of no other conclusion than the message sent was received in the same terms and in the circumstances the only reasonable inference is that two phones, so far as WhatsApp is concerned that the phones were accurately sending and receiving messages.

55. For these reasons I am satisfied that it is appropriate to admit the WhatsApp evidence.

Severance of the 2 counts on the indictment

The issues in the trial

56. The prosecution case against 2nd accused is that 1st accused took delivery of a parcel containing the drugs, the subject of Count 1, at the premises averred in that Count. She was not the addressee of the parcel but the carrier, DHL, received instructions to send the parcel to the address on the Count 1 of indictment and the parcel was duly delivered. The delivery was not an ordinary delivery but a controlled delivery using customs officers posing as employees of DHL.

57. As I have briefly outlined earlier in a difference context, it is pertinent to note that the controlled delivery was by no means the 1^st attempt at that process. There have been 4 previous attempts. The first had been to the addressee on the parcel at an address in Kam Tin. A further unsuccessful delivery to the same address was also unsuccessful. A 3^rd delivery attempt occurred after DHL received instructions from a person purporting to be the consignor that the parcel be delivered to premises in Yuen Long. DHL then received instructions to deliver the parcel to a person having the same name as 1st accused and that the parcel should be delivered to the address in Count 1 of the indictment. The 4^th delivery attempt was attempted at the address and was unsuccessful.

58. The 5^th attempt to deliver the parcel occurred when a customs officer disguised as an employee of DHL went to the address in Count 1 of the indictment where 1st accused answered the door. She confirmed that her name was Ko Wai Kit and that she was expecting a DHL parcel. Indeed, she produced the airway bill number which was the same as that on the parcel. She confirmed that she wanted to receive the parcel even though her name and address was not on the parcel. Her identity card was produced and in due course she took the parcel from the officer posing as the DHL employee.

59. On receipt of the parcel, 1st accused was arrested and said that the parcel was not her parcel, but she was receiving it for a person whose name was the same as 2nd accused.

60. 2nd accused turned up at the premises and was identified by 1st accused as being Hui Wai Kit. Following that 2nd accused was also arrested and cautioned.

61. Both accused was taken to Customs & Excise premises at the Airport. At these premises, 2nd accused was searched and the drugs, the subject of Count 2 on the indictment, were found in his underpants.

62. The prosecution in order to succeed in its case against 1st accused would have to prove that at the time she received the parcel knew that it contained dangerous drugs and that the drugs were for the purpose of unlawful trafficking. In order for the prosecution to succeed against 2nd accused, it would have to be proved that at the time he turned up at the premises that he was there to collect or otherwise deal in the drugs, the subject of Count 1 on the indictment. One of the critical issues in respect of both accused, his knowledge of what was in the package.

63. In relation to the issues in relation to the Count 1, the case against both accused is circumstantial. Neither accused is made admissions about knowledge in relation to the drugs in this account.

64. In relation to the Count 2, the case against 2nd accused could readily be viewed as quite strong. Given where the drugs were found, a strong inference is available that 2nd accused secreted the drugs in his underpants. In the circumstances of the case, it would clearly be open to the jury to infer that he knew perfectly well what it was he secreted in his underpants.

The contention on behalf of 2nd accused

65. Both the prosecution and 2nd accused accept that it was proper that Counts 1 and 2 should be joined in this indictment. The legal framework for the acceptance of this position is to be seen in Rule 7 of the Indictment Rules set out full below. In essence, the contention of 2nd accused is that, notwithstanding this proposition, the joinder of the 2 counts on the same indictment prejudices 2nd accused, because the jury if they were to know about the facts of the Count 2, they could readily infer that he knew about the drugs and the nature of those drugs which are the subject of the Count 2. The argument on behalf of 2nd accused is that if they came to the conclusion that he knew about “ice”, he would be more likely to commit the offence of trafficking in “ice”. On behalf of 2nd accused, it is argued that the jury might be tempted to undertake what is forbidden reasoning that because 2nd accused was a possessor of “ice”, he would be more likely to traffic in that substance.

66. On behalf of 2nd accused, if he faced both counts at trial it is also argued that 2nd accused that he would lose his “shield”. Presumably the essence of this contention is that pursuant to section 54(1)(e) of the Criminal Procedure Ordinance, Cap. 221, the prosecution would be entitled, if 2nd accused testified, to cross examine him about the drugs in his underpants. The argument is that this would not be open to the prosecution, if the Count 2 was not on the indictment.

67. Allied to this, the argument on behalf of 2nd accused is that the exposure of 2nd accused on a two-count indictment to cross examination about the possession count would have the practical effect of discouraging 2nd accused from testifying in relation to the first.

68. Accordingly, it is submitted on behalf of 2nd accused that the combination of circumstances produces an element of unfairness against him.

69. In this regard, the argument on behalf of 2nd accused is not that the charges were improperly joined but that the joinder produces unfairness and by reason thereof the discretion vested in the Court by section 23 of the Criminal Procedure Ordinance is invoked.

The contentions of the prosecution

70. The case for the prosecution on this issue is that the 2 charges arise from the same set of facts and sequence of events. Further, 2nd accused has entered pleas of not guilty to both charges and if the charges were severed that would necessitate two trials. Further, the prosecution points out that both charges involve dangerous drugs and indeed the same dangerous drug in both cases. The prosecution also points out that the witnesses involved in both counts are the same and 2 trials necessitate them being called twice. In connection with this, it is contended that the credibility of the witnesses should be determined in one trial rather than two.

Principles informing the exercise of the discretion vested in the Court
Exercise of the discretion

71. It is the position of both the prosecution and those representing 2nd accused that the case is not one of mis-joinder. In this regard, Rule 7 of the Indictment Rules provides:

“Subject to section 18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

These rules are made under the Criminal Procedure Ordinance. As I have already indicated, the position of both parties is that the offences form a series of offences of the same or similar character and that, accordingly, the offences were properly joined in the indictment. Section 18 of the Ordinance is not relevant for present purposes.

72. Section 23(3) of the Criminal Procedure Ordinance reposes a discretion in the Court to sever an indictment. Section 23(3) provides as follows:

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

73. Section 23(3) is clearly designed to cover a multitude of situations and is not limited to situation where there has been compliance with Rule 7. That said, that situation likely to be the most commonly encountered situation. On its face, the provision reposes in the Court a discretion to order a separate trial of any count or counts in the indictment if “the Court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with [one or] more than one offence in the same indictment.”

74. The issue for determination is whether in the circumstances the accused is prejudiced or embarrassed in his defence by being tried on the 2 counts in the indictment. If that circumstance exists then there is a discretion to sever. The discretion is informed by the policy underlying Rule 7 of the Indictment Rules. The policy behind this provision is to permit the whole of the facts of the case to be adjudicated on by one jury. In Ludlow v Metropolitan Police Comr [1971] AC 29, the House of Lords considered the principles which govern the exercise of discretion to sever under the equivalent of section 23 of the Criminal Procedure Ordinance.[13]

75. It is plain that in Ludlow, Lord Pearson took the view that the discretion order severance of otherwise properly joined charges are to be understood against the background of the width and effect of the rule which permits joinder. In this regard, Lord Pearson considered the decision of the English Court of Appeal in R v Kray [1969] 3 WLR 831 and he cited with approval the following from that decision:[14]

“It is not desirable, in the view of this court, that [Rule 7] should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge’s discretion to sever the indictment. All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.”

76. Implicit in that passage in Kray is the recognition that there may be cases where there will be prejudice to an accused by reason of the joinder of charges in an indictment meets the requirements of Rule 7. That prejudice might be ameliorated by proper directions from the trial judge in summing up. Lord Pearson made this point again in a slightly different context further in speech when he observed:

“In my opinion, this theory - that a joinder of counts relating to different transactions is in itself so prejudicial to the accused that such a joinder should never be made - cannot be held to have survived the passing of the Indictments Act, 1915. No doubt the juries of that time were much more literate and intelligent than the juries of the late eighteenth and early nineteenth centuries, and could be relied upon in any ordinary case not to infer that, because the accused is proved to have committed one of the offences charged against him, therefore he must have committed the others as well. I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately. Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate in my opinion, the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5 (3). If the theory were still correct, it would be the duty of the judge in the proper exercise of his discretion under section [23(3)] to direct separate trials in every case where the accused was charged with a series of offences of the same or a similar character, and the manifest intention appearing from section 4 and rule 3 would be defeated. The judge has no duty to direct separate trials under section [23(3)] unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated [authority cited], or too difficult to disentangle [authority cited], so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused: [authority cited].”

The observation by Lord Pearson in the foregoing passage about the common sense and quality of juries who try cases in England and Wales in the 1970s applies with even greater force to juries who try cases in Hong Kong.

77. Lord Pearson also made the point, citing R v Sims [1946] KB 531, 536 that the fact that evidence may be admissible in one count and inadmissible in another which was otherwise properly joined under Rule 7 would not necessarily attract an exercise of a discretion to sever the charges.

78. It was against this background that Lord Pearson said in the passage cited immediately above that require some “special feature” to justify the exercise of the judicial discretion to sever.

79. It appears that Ludlow and Kray have been consistently followed in Hong Kong: R v Lee Shun Chung & Ors CACC 359/1986; R v Wong Lap Kwong [1991] 1 HKLR 52, [1991] HKCU 324; R v Mark Ayivor CACC 359/1991; R v Lo Wai Keung [1993] 2 HKDCLR 47, (1992) 2 HKPLR 478; Yeung Chun Pong & Ors v Secretary for Justice [2008] 3 HKLRD 1, [2008] 2 HKC 46, (2008) 13 HKPLR 61, §47; HKSAR v Fung Hin Wah Edward [2012] 1 HKLRD 360, §39; HKSAR v Hui Rafael Junior & Ors [2015] HKEC 21, §9; HKSAR v NSH [2017] 3 HKLRD 214, [2017] 4 HKC 269; HKSAR v Musah Hakeem Tahiru[2018] HKCFI 1360, [2018] 3 HKLRD 1.

80. In Musah Hakeem Tahiru (above), Zervos J (as Zervos JA then was) referred to Ludlow and said: “It is only where there is a special feature in the case which would make a single trial prejudicial or embarrassing to the accused or for any other reason that the court would exercise its discretion to order separate trials.”[15] Zervos J then explained what he meant by “special feature” as he observed:[16]

“Ultimately the question as to whether to exercise the power will depend on how the interests of justice are best served, taking all the circumstances and interests into account but bearing in mind the accused’s right to a fair trial. So when we talk about whether there is a special feature in the case that would make a single trial prejudicial or embarrassing to the accused or for any other reason we are in fact saying is there a good reason to order a separate trial because of the real risk that the trial will result in unfairness to the accused or offend the interests of justice.”

81. It seems to me that the observations in Musah Hakeem Tahiru (above) as to the true scope of the discretion vested in the Court by section 23 of the Ordinance makes clear that Lord Pearson in Ludlow in referring to a “special feature” was not to be understood as adding an extra or super added requirement as a precondition to the exercise of the section 23 discretion. Given the policy which underlies section 23 and Rule 7 and given the other available tools that the trial judge has to ameliorate any prejudice which might arise, it would be, of necessity, an unusual case which mandates the exercise of that discretion. In short, what has to be considered in the interests of justice and, in particular, whether the accused is likely to get a fair trial.

82. In Hui Rafael Junior & Ors (above) §11, Macrae JA (as Macrae VP then was) followed Ludlow (above) and endorsed a passage from R v Christou [1997] AC 117, 129 D-F as to the factors which arise in this context as follows:

“They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution of those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: - how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully.”

Elements of the offences

83. Both trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134 and possession of a dangerous drug contrary to section 8 of that Ordinance have at least one common element. The accused on a charge of trafficking must be proved to have known that he was trafficking in a dangerous drug: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369, §36-38. It is not necessary to prove that the accused knew the specific nature or class of drug in which he was trafficking: R v Tam Chun Fai [1994] 2 HKC 397, 401-402.[17]

84. The same considerations operate in section 8.

Application of the principles to the present case

85. There are, in effect, to contentions in the first basis upon which counsel for 2nd accused contends that the charges should be severed. Essentially what counsel is arguing is that the jury might conceivably reason that because accused must have known about the ice in his underpants that he therefore must have known about the ice in the package the subject of Count 1. The issues are, in my opinion, substantially different because the mode of possession or attempted possession is fundamentally different. Further, the real issue in relation to Count 1 is whether reason that 2nd accused came to the relevant premises was that he intended to pick up a central quantity of dangerous drugs. In my judgement, the simplest of directions in the summing up (assuming a case to answer) or separate consideration would make the case. The 2^nd argument within the first contention of counsel for the accused is the insidious implication that the jury might think because of the drugs in the underpants that 2nd accused is to use colloquial (but possibly outmoded) parlance, a “druggie” and therefore because he is a “druggie” would be more likely to be involved in trafficking in dangerous drugs. Leaving aside the obvious difference in quantities, it seems to me that this can be also readily cured by direction.

86. The second and third contentions of counsel for 2nd accused are closely aligned and can be considered together. The contentions are that 2nd accused might, he chooses to testify lose his “shield” because if he faced only the trafficking count could not be cross-examined about the possession count. This is allied with the contention on behalf of 2nd accused that the accused might be inhibited from giving evidence if he faces 2 counts whereas if he simply faced the trafficking count he might be less inhibited to give evidence. Section 54(e) permits cross-examination of an accused and an obligation to answer questions about that with which he is charged. The right to self-incrimination applies to anything other than that with which he is charged. This contention does not take into account that the cross-examination of the accused (whether by the prosecution or 1st accused) is limited only to questions which are relevant. Even if 1st accused ran a somewhat modified “cut-throat” defence (it was not me, but if it was anyone it was him) the bounds of relevance to questions are clearly circumscribed. In any event, if questions were run along the “druggie” line that could be appropriately cured by direction. In any event, a determination as to whether to sever upon the basis that the accused might be inhibited to give evidence is, at this stage of the trial speculative in the extreme. In any criminal trial, a multitude of tactical and other considerations form the advice as to whether or not to testify and the decision based on that advice. There is certainly nothing at this stage of the trial which would justify the exercise of the discretion at this stage. I am far from encouraging a further application later in the trial, but I do make the point that section 23 of the Ordinance does speak of “at any time of the trial”.

87. Further in relation to these 2 contentions, this matter was considered in R v Phillips (1988) 86 Cr App R 18 the same argument was levelled before the English Court of Appeal. Woolf LJ for the Court observed:[18]

“In exercising his discretion the judge can take into account the practical consequences of ordering separate trials including the expense and inconvenience to witnesses that will result as well as the circumstances of the defendant. While the right of a defendant not to give evidence must be recognised and weight can be given to the desires of the defendant, it has to be borne in mind that whether or not the indictment is severed the defendant can change his mind about his wishes as to giving evidence and because of this there would be a risk that in some cases applications would only be made for tactical reasons.
Certainly in the circumstances of this case, the Court would not dissent in any way from the decision of the learned judge that he was not required to sever the counts of this indictment. The two counts were closely inter-related and it was obviously desirable that they would both be dealt with together at the one trial.”

88. I take the decision of the English Court of Appeal in Phillips (above) not as binding or persuasive authority that the possibility of being inhibited from giving evidence can never be a consideration, but the observations of Woolf LJ as to the fact is that a trial judge might consider are as pertinent in that case as they are in the present. In my judgement, a proper balance between the factors which would mandate accused facing both counts on the indictment and the possible disinhibition of the accused from giving evidence comes down, at least at the moment of giving this decision strongly and powerfully in favour of refusing such an application.

89. The fact that it is not necessary for the prosecution to prove that the accused knew the specific nature of the drug, the subject of the 2 charges that he faces is a minor and probably largely theoretical factor which militates against exercising the discretion. Given the high probability that a jury would have not the slightest difficulty in concluding that the accused knew he was in possession of a dangerous drug and, for all practical purposes, that this drug was ice, the practical reality of the points made on behalf of 2nd accused still exists. The more pertinent point is that it is not a very forceful point and for the reasons I have already expressed not one which would cause this Court to exercise the discretion to sever.

90. I have also considered the grounds advanced on behalf of 2nd accused cumulatively as well as the individual consideration outlined in the preceding paragraphs. The conclusion is that in the light of the policy underlying Rule 7 and section 23 the balance, at least at this stage, comes down firmly in favour of the accused facing both counts on the indictment. I decline to sever the indictment.

	(Andrew Bruce, SC )
	Deputy High Court Judge

Mr CHEUNG Kam-shing Adonis, Counsel on fiat for DOJ / HKSAR for Prosecutions

Ms CHAN Man-yee Cannise, instructed by Cheung & Liu, assigned by D.L.A., for the 1st accused

Mr WONG Chi-wai Philip, instructed by Krishnan & Tsang, assigned by D.L.A., for the 2nd accused

[1] [2010] 3 HKLRD 515, §26, 29-32.

[2] S-J v Lam Tat-ming & Anor (2000) 3 HKCFAR 168.

[3] It is of course possible to send a message to a “wrong number”. However, given the frequency of communication in the instant case, this was never an issue.

[4] Commonwealth Shipping Representative v P and O Branch Service [1923] AC 191, 213, per Lord Sumner. The position is also articulated in Holland v Jones (1917) 23 CLR 149, 153.

[5] The issue was whether the shipping collision arose from war risks or was an ordinary seafaring risk. Insurance consequences arose.

[6] [1923] AC 191, 211.

[7] Examples include Ingram v Percival [1969] 1 QB 548, R v Chan Kin-san and Another [1988] 2 HKLR 232.

[8] That case was concerned with section 69 of the Police and Criminal Evidence Act 1984. That provides a basis for the admissibility of computer evidence. It is appropriate to notice that it is different in its terms to section 22A of the Evidence Ordinance, Cap 8.

[9] (2015) 18 HKCFAR 50, §27.

[10] See the powerful observations of Lord Hailsham in DPP v Ping Lin [1976] AC 574.

[11] Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98; Vivien Fan v HKSAR (2011) 14 HKCFAR 641; HKSAR v Lam Hing Chit [2018] 5 HKC 441, 450.

[12] LeeFat v R [1969] HKLR 349, 354.

[13] At the time of the decision in Ludlow, the equivalent of section 23(3) was section 5(3) of the Indictments Act 1915. It is appropriate to note that there has been recent statutory change to the English position which is outlined in R v Williams [2017] 4 WLR 93, §26 and now it appears that an indictment may contain “any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served.” The equivalent of Rule 7 of the Indictment Rules appeared in subordinate legislation to the Indictments Act 1915. They are in identical terms.

[14] [1969] 3 WLR 831, 836-837. Of this passage Lord Pearson said: “That last sentence is not a construction of the rule, but I think it is helpful practical advice for those applying the rule. The view that [Rule 7] should not be given an unduly restricted meaning derives support from authority.”

[15] [2018] HKCFI 1360, [2018] 3 HKLRD 1, §24.

[16] [2018] HKCFI 1360, [2018] 3 HKLRD 1, §25. This echoes the observations of Zervos J in HKSAR v Chan Yiu Shing & Ors[2018] HKCFI 314, §14 (Ruling 10).

[17] The decisions of HKSAR v Mohammed Saleem (above) and R v Tam Chun Fai (above) were followed by the Court of Final Appeal in Lai Kam Fat v HKSAR [2019] 6 HKC 293 in the context of the decision by that Court as to whether in a charge of conspiracy to traffic in dangerous drugs it is necessary for the prosecution to prove that the accused knew the nature of the dangerous drug which was the subject of the conspiracy.

[18] (1988) 86 Cr App R 18, 24.

HKSAR v. KO WAI KIT AND ANOTHER

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