Case Detail

CACC 210/2021

[2024] HKCA 86

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2021

(ON APPEAL FROM HCCC NO 4 OF 2020)

__________________________

BETWEEN
	HKSAR	Respondent
	and
	CHAN HO KWAI	Applicant

__________________________

Before:

Hon Macrae VP, Zervos and M Poon JJA in Court

Dates of Hearing:	12 January 2024
Date of Judgment:	12 January 2024
Date of Reasons for Judgment:	19 January 2024

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REASONS FOR JUDGMENT

___________________________

Hon M Poon JA (giving the Reasons for Judgment of the Court)

1. The applicant was convicted after trial before Deputy High Court Judge McWalters (“the Judge”) and a jury of trafficking in 4.62 kilogrammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 6 September 2021. He was sentenced to 24 years’ imprisonment on 8 September 2021. On 17 January 2023, the application for leave to appeal against conviction was refused by the Single Judge[1] on all grounds. The applicant filed a renewal application, which we heard and refused. His appeal against conviction was dismissed. We said that we would hand down the reasons for our decision in due course. This we now do.

An overview of the prosecution and defence case [2]

2. The 4.62 kilogrammes of cocaine, with an estimated street value of $5,854,880, was hidden in several water cartridges packed in three carton boxes in a suitcase brought into Hong Kong from Johannesburg on 29 May 2019. The key issue in the case was whether the applicant knew of the presence of the drugs. The prosecution relied on his admission under caution that “I charged someone $50,000 for bringing back the dangerous drug. I haven’t received the money.” Furthermore, in a subsequent video-recorded interview, the applicant explained how it was arranged by a person called “Ng Gor” for him to travel to South Africa and bring back a package to Hong Kong for a reward of $50,000.

3. After a contested voir dire, the verbal admission, post-record and video-recorded interview of the applicant were admitted into evidence. The applicant gave evidence in his defence. He claimed that he was deceived by Ng Gor and denied knowledge of the presence of the drugs. He also denied making the verbal admission and alleged that he was subject to police misconduct.

A consideration of the Grounds of Appeal

4. Ground 1 complained that PW2, Customs officer 15210, who might have been able to testify in support of his case that he did not make the verbal admission, was not called to give evidence at the voir dire. We observed that whilst PW2 conducted an X-ray examination of the applicant’s luggage, the applicant was handed over to police officers at 8:36 am. PW4, PC 14579, arrested and cautioned him. The evidence of PW2 at the trial was that although he was in the vicinity he did not hear clearly what was said and so he was not sure if any police officer arrested or cautioned the applicant[3]. In any event, the voir dire only concerned the admissibility of the admissions, and whether any such admissions was made remained a factual matter for the jury.

5. Ground 2 contended that the judge erred in not giving a lies direction. We would simply say that as the prosecution only relied on the discrepancies between the statements made by the applicant and his oral testimony to attack his credibility, a lies direction was not called for. This course was agreed after a discussion between the judge and counsel.[4] The word “lie” or “lies” was never mentioned by the Judge in his summing-up.

6. The applicant complained in Ground 3 that it was a material irregularity that PW3, DPC 7395, the exhibit officer, who had been in court assisting the prosecution during the voir dire, gave evidence at the trial. At the hearing we were informed by Mr Lui for the Respondent that PW3 only stayed to assist the officer-in-charge after the defence indicated that PW3 was not required to give evidence at the voir dire. Once it became apparent that he would be required to give evidence at the trial, PW3 was instructed to leave the court immediately. The situation was known to defence counsel and no issue was raised about this at any time.

7. Ground 4 alleged that the applicant was deprived of dockside interpretation after a 3 months hiatus in the middle of the applicant’s examination-in-chief at the voir dire. The court record shows that on the third day of the voir dire, 20 May 2021, the judge became concerned about the intellectual functioning of the applicant when he was examined-in-chief. The matter was adjourned for 3 months to 23 August 2021 for the defence to obtain a psychological report. The hearing resumed on 23 August 2021 when the court was informed the defence would not call psychological evidence, albeit that such a report had been obtained. The case was further adjourned to 24 August 2021 for continuation of the voir dire. Although this course adopted by the judge was most unusual, the court record shows that throughout the whole proceedings including the voir dire and the trial the court interpreter was present. The applicant’s counsel never raised any issue of lack of adequate interpretation with the court.

8. Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory based on the previous grounds of appeal. As we found that all four grounds were without merit, Ground 5 could not avail the applicant.

9. We refused leave to appeal against conviction on those grounds accordingly and the appeal was dismissed.

(Andrew Macrae)
Vice President

(Kevin Zervos)
Justice of Appeal

(Maggie Poon)
Justice of Appeal

Mr Ira Lui, ADPP of the Department of Justice, for the respondent

The applicant acting in person

[1] Zervos JA

[2] Appeal Bundle, pp22A-43A

[3] Appeal Bundle, p181C-E

[4] Appeal Bundle, pp186S-187G

CACC 210/2021

[2023] HKCA 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2021

(ON APPEAL FROM HCCC NO 4 OF 2020)

_______________

	HKSAR	Respondent
	v
	Chan Ho-kwai	Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 17 January 2023

Date of Judgment: 17 January 2023

________________

J U D G M E N T

________________

1. On 6 September 2021, the applicant was convicted after trial before Deputy High Court Judge McWalters (the judge) and a jury of trafficking in 4.62 kilogrammes of cocaine narcotic. The key issue in the case was whether the applicant knew of the presence of the drugs in several water filter cartridges that were packed in boxes and placed in a black suitcase that he checked in as his luggage on a flight from Johannesburg in South Africa to Hong Kong on 29 May 2019. The drugs were found when Customs officers checked his luggage. He was handed over to the police, and told them after he was arrested and cautioned, “I charged someone $50,000 for bringing back the dangerous drug. I haven’t received the money.” In a subsequent video recorded interview, the applicant said that he came to know a Chinese person by the name of Ng Gor at an amusement game centre, and this person asked him to travel to South Africa and bring back to Hong Kong a package for him, in return for which he would be paid $50,000. He said he was given the black suitcase by a foreigner in South Africa and never opened it.

2. The estimated street value of the cocaine at the time of the offence was $5,854,880.

3. The applicant gave evidence in his defence. He denied knowing that the cocaine was concealed in the water filter cartridges and claimed that Ng Gor deceived him into transporting the drugs. He disputed the admissions allegedly made by him to the police, which he contested in a voir dire and at trial. He testified of his dealings with Ng Gor, who gave him $20,000 to buy the air tickets and book a hotel room in South Africa between 25 and 29 May 2019. On 27 May 2019, a foreigner, who spoke Putonghua, handed him a carton box at his hotel (instead of a suitcase as he claimed in his video recorded interview). He opened the box, inspected its contents, and found 3 smaller carton boxes. He opened one of the smaller boxes and found it to contain cartridges, so he did not suspect that they were dangerous drugs. He then placed the 3 smaller carton boxes in his own black suitcase, which he had brought from Hong Kong. At the airport in South Africa, he paid an additional fee for the suitcase to be wrapped. When he arrived at Hong Kong airport and was intercepted by Customs officers, he did not make a verbal admission, and challenged how he was dealt with before and during the video recorded interview, claiming that he had been scolded and threatened by the police officers.

4. The issue before the jury was whether the applicant knew that dangerous drugs were concealed in the water filter cartridges. The jury convicted the applicant of trafficking in the drugs by a majority of 5 to 2.

5. On 8 September 2021, the judge sentenced the applicant to 24 years’ imprisonment.

6. On 23 September 2021, the applicant filed an application for leave to appeal against his conviction, in which the sole complaint was that the judge misdirected the jury. On 17 May 2022, he filed perfected grounds of appeal out of time, advancing five grounds. Ground 1 complained that the prosecution had failed to put forward all available evidence in the voir dire, namely the evidence of Customs Officer 15210. Ground 2 was directed at the judge’s failure to give a lies direction. Ground 3 asserted that the presence of the exhibits officer (PW3) in court before being called to testify constituted a material irregularity. Ground 4 stated that no interpretation of the proceedings had been provided to the applicant. Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory.

7. After considering the applicant’s case, the Legal Aid Department and the Bar Free Legal Service refused to provide legal assistance to the applicant. However, the Department of Legal Aid submitted a letter dated 30 September 2022 to the court, enclosing a letter from Mr Eric Cheung of the Clinical Legal Education Office of the University of Hong Kong dated 14 September 2022, attaching a Joint Note of Legal Advice from Mr Eric Cheung and Mr Josiah Chan. In the Joint Note, Mr Cheung and Mr Chan, having acknowledged they had not considered the closing speeches of counsel and the discussion between the judge and counsel on the contents of the summing up, raised for consideration the judge’s failure to give directions on suspicion and to properly address the applicant’s previous inconsistent statements. The Legal Aid Department advised that it had considered the Joint Note and was of the view that legal aid should be refused.

8. At the leave hearing, the applicant applied for an adjournment to arrange for legal representation. It was noted that he had been refused legal assistance on numerous occasions by the relevant bodies and he had made no effort to arrange for legal representation for the hearing, which had been previously fixed for 14 October 2022. The application was refused.

9. Ground 1 complained that the prosecution failed to call all available evidence in the voir dire, namely Customs Officer 15210. The applicant claimed that the officer would have supported his case that he did not make the verbal admission to another Customs Officer. However, Customs Officer 15210 gave evidence at trial as PW2, and it was a factual issue before the jury as to whether the verbal admission as alleged had been made. When the Customs Officer testified, he did not confirm that the applicant remained silent as he had claimed.

10. Ground 2 concerned whether a lies direction should have been given by the judge in his summing up to the jury. It is apparent that the prosecution did not rely on lies by the applicant to strengthen its case or to prove the applicant’s guilt. There was discussion about whether a lies direction should be given, and it was accepted, on the basis on which the prosecution was to present its case, one was not necessary.

11. Ground 3 complained about the presence of the exhibits officer in the courtroom during the voir dire. It would appear that initially the exhibits officer would not be required to testify, and he assisted the officer in charge in handling the documents and exhibits. When it became apparent that he would be required to give evidence, the officer left the courtroom. It had all been discussed with defence counsel, and no issue had been taken about the matter.

12. Ground 4 alleged that the proceedings during a voir dire were not interpreted to him. There is no substance to this ground as interpretation was provided to the applicant throughout the proceedings in the voir dire and at trial.

13. Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory based on the previous grounds of appeal and is therefore unsustainable.

14. The next two grounds are the ones raised in the Joint Note and adopted by the applicant.

15. Ground 6 complained that the judge failed to give a direction in accordance with Specimen Direction 61.3 that suspicion would not suffice and knowledge must be proved. It is true that the issue at trial was whether the applicant knew dangerous drugs were concealed in the water filter cartridges. However, whether this direction was required depends on whether the applicant was suspicious. As pointed out by the respondent, the applicant denied he was suspicious of transporting the carton boxes in his video recorded interview and testimony in court. The applicant said that he had been told by Ng Gor to bring back cartridges and that he examined the carton boxes and found cartridges inside them. There was no prominence to the notion of suspicion at trial. The applicant was cross-examined that he knew he was transporting drugs and that was the case against him. In the closing speeches of counsel and the judge’s summing up no issue was made that the applicant had suspicion that drugs were involved. In his comprehensive directions to the jury, the judge stressed that knowledge was the only basis for conviction.

16. I do not find this ground of appeal to be reasonably arguable.

17. Ground 7 concerned the failure of the judge to direct the jury on the applicant’s previous inconsistent statements. It was noted that the prosecution extensively cross-examined the applicant on the inconsistencies in his evidence with what he had said in his video recorded interview. It is contended that the judge should have explained to the jury under what circumstances they need to examine the issue of the alleged inconsistencies and what use, if any, they could make of them. The respondent submits, correctly, in my view, that the proposed direction was unnecessary for the following reasons. First, the judge had correctly directed the jury to ignore and disregard the applicant’s out-of-court statements if they were not sure that they had been properly taken or that the statements were true. Secondly, the inconsistencies and contradictions were acknowledged and addressed by defence counsel in his closing speech. Thirdly, the proposed direction would have been unnecessary because they only went to the applicant’s credibility. Fourthly, the judge had highlighted the defence’s submission that the applicant’s age, education level and physical condition after a long flight tended to support his credibility in relation to his out-of-court statements. Fifthly, the judge had instructed the jury to give the applicant’s testimony due allowance for his old age and the stress of facing a serious criminal charge. Sixthly, given the nature of the alleged inconsistencies and that the case was fairly straightforward, the jury would have had no difficulty assessing them if established.

18. I am not persuaded that this ground is reasonably arguable.

19. It follows from what I have said that the application for leave to appeal against conviction is refused.

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

	(Kevin Zervos)
	Justice of Appeal

Mr Ira Lui, ADPP, of Department of Justice, for the respondent

The applicant appears in person

HKSAR v. CHAN HO KWAI

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