CACC 78/2021
[2022] HKCA 107
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 78 OF 2021
(ON APPEAL FROM HCCC NO 276 OF 2019)
________________________
| | HKSAR | Respondent |
| | v | |
| | ROJAS MONTOYA JUAN PABLO | Applicant |
________________________
Before: Hon Zervos JA in Court
Date of Hearing: 19 January 2022
Date of Judgment: 26 January 2022
________________________
J U D G M E N T
________________________
1. The applicant was convicted after trial before Alex Lee J (the judge) and a jury of a single count of trafficking in a dangerous drug, namely 1,607.7 grammes of cocaine narcotic and sentenced to 23 years and 6 months’ imprisonment.
2. The applicant now seeks leave to appeal against his conviction.
3. The applicant originally filed initial grounds of appeal that were provided by his trial counsel, Mr Oliver Davies. He replaced them on 6 October 2021 by perfected grounds of appeal which included a ground alleging that Mr Davies was flagrantly incompetent in the conduct of his defence at trial.
4. The applicant appears in person, having had legal assistance refused by the Director of Legal Aid on 29 November 2021 and the Clinical Legal Education Office of the Faculty of Law, University of Hong Kong on 4 January 2022.
The prosecution case
5. On 19 March 2018, the applicant was intercepted by Customs officers near the clubhouse of the residential estate of Avignon in Tuen Mun. He was searched and two keys were found in his possession. The applicant claimed that he lived in Flat 6A, Tower 7 at Avignon (the Avignon flat). He was then escorted to the flat, where one of the keys he possessed opened the front door. In the living room was found a tenancy agreement for Flat A, 22/F, Block 3, Hong Kong Gold Coast, Phase I, Tuen Mun (the Gold Coast flat),[1] with the applicant recorded as the tenant.[2]
6. When Customs officer Choi Kai-shing (PW1) found the tenancy agreement he queried the applicant about it, who replied it was “For party and work”.[3] He was escorted to the Gold Coast flat, where the Customs officers used the other key he possessed to open the door. The flat was unfurnished with no sign that anyone lived there.[4] The interior of one of the rooms had been lined with a soundproof sponge so that it was completely soundproof. The Customs officers found inside this room an open carton box, containing 6 packets of cocaine, a small amount of white powder on top of a metal component and some packaging tools.[5] The street value of the drugs was about $1.87 million.[6]
7. CCTV footage, adduced into evidence by way of an admitted fact,[7] showed the applicant had been to the Gold Coast flat either alone or together with a person identified as Grisales Pelaez Arony Olinder (Olinder) on several occasions from 6 to 18 March 2018.[8] It was not in dispute that the electricity account of the Gold Coast flat was in the applicant’s name. The immigration movement records of Olinder showed that he departed Hong Kong on 6 March 2018 and returned on 8 March 2018[9], whilst the records of the applicant, showed he entered Hong Kong on 21 January 2018 and was allowed to stay for 3 months.[10]
8. The case against the applicant was that he was in possession of the cocaine either solely or jointly with Olinder for the purpose of trafficking in the drugs.
The defence case
9. The applicant’s defence was that he was an innocent dupe used by Olinder, without knowing what Olinder was doing in the Gold Coast flat.[11] He only helped Olinder rent the Gold Coast flat as Olinder had told him that he needed to be away for an urgent business trip. He had no knowledge of and nothing to do with the dangerous drugs and the packaging tools found in the Gold Coast flat.[12]
10. The applicant gave evidence in his defence. He denied that he had told the Customs officer that the Gold Coast flat was “For party and work”.[13] He claimed that he had accepted an offer from his friend Angelica, to go to Hong Kong to model some clothing items. He brought with him his savings in cash of about US$9,800 (around HK$76,000). However, when he arrived in Hong Kong he found out that Angelica had gone on her honeymoon. She told him he could stay in the Avignon flat and she gave him Olinder’s contact number, from whom he could obtain the key to the Avignon flat. He did so and moved into the flat. In around late February, Olinder asked him to help rent an apartment for him as his tenancy was soon to expire. The applicant agreed and arranged to view the Gold Coast flat with an estate agent, Miss Kwan. However, in the morning on 6 March 2018, Olinder said he had to go on an urgent business trip to Macau. The applicant therefore viewed the Gold Coast flat without him. As requested by Olinder, he rented the Gold Coast flat for him. He paid 3 months’ rental of HK$57,000 in total to the estate agent on 6 March 2018 and signed the tenancy agreement for the Gold Coast flat on 7 March 2018. The applicant obtained 2 keys to the main door of the Gold Coast flat from the estate agent.[14] He did all of this for Olinder because he was grateful to him.[15]
11. On 7 March 2018, the applicant used the key to open the main door for a workman to carry out some repair work at the Gold Coast flat.[16]
12. On 9 March 2018, the applicant went to the Gold Coast flat with Olinder, who put a suitcase into the soundproof room. Olinder repaid HK$20,000 to him and in return he passed to Olinder the key to the main door. He kept the other key as a warranty in case Olinder did not repay him the balance of the money.[17]
13. On 15 March 2018, the applicant went to the Gold Coast flat with Olinder. Olinder repaid another HK$20,000 to him. Subsequently, Olinder left and he stayed there alone for about an hour. He said he had brought cleaning products to help clean up the Gold Coast flat as requested by Olinder during that interval. But he had never entered the soundproof room as the door to the room was closed.[18]
14. Both the applicant and Olinder visited the Gold Coast flat again on 16 March 2018. They stayed there and chatted.[19]
15. On 17 March 2018, the applicant went to the Gold Coast flat again. He said Olinder gave him a black suitcase as a gift and thus he left with it. He subsequently returned and Olinder repaid the balance of the money of HK$17,000 to him. He showed the tenancy agreement to Olinder and they agreed that they would find the estate agent to change the name on the tenancy agreement.[20] He did not give the tenancy agreement to Olinder because he did not trust him to make the change.[21]
16. The applicant further claimed that he had never seen the dangerous drugs, the electronic scales and the soundproof material. He was aware that there were some carton boxes but they were empty.[22] He explained that he gave the wrong date for his arrival in Hong Kong during the video record of interview because he was upset and confused.[23]
The grounds of appeal
17. The grounds of appeal advanced by the applicant are as follows:
Ground 1: The prosecution widened the scope of its case twice, rendering the trial unfair.
Ground 2: The trial counsel who acted for the applicant was flagrantly incompetent.
Ground 3: The judge failed to direct the jury on the alternative charge of permitting the premises to be used for the purpose of drug trafficking, contrary to section 37 of the Dangerous Drugs Ordinance, Cap 134.
Ground 4: The judge failed to direct the jury in respect of the uncharged acts.
Ground 5: The directions to the jury in relation to “possession” and “joint possession” were incomplete.
Ground 6: The judge failed to give a “good character” direction to the jury.
Ground 7: The conviction was unsafe and unsatisfactory.
Discussion
18. I turn to address the grounds of appeal. I must say from the outset that none of the grounds has any merit to them.
Ground 1
19. The applicant contends that the prosecution had widened its case against him during the trial. This complaint is premised on the fact that the prosecution originally alleged that the applicant was in sole possession of the drugs but later in its case put to the jury that the applicant may have also been in joint possession of the drugs with Olinder. Whilst there was some evidence that linked Olinder to the Gold Coast flat, it was pointed out by Mr Nicholas Wong, counsel for the respondent, that at that stage it consisted of CCTV footage, which did not depict very clearly the image of Olinder, and a fingerprint that was found on the door of the rear bedroom in the Gold Coast flat.[24] Whereas the case against the applicant consisted of the indisputable evidence that he had leased the flat as well as CCTV footage and other evidence connecting him to the flat during material times.
20. Whilst the applicant acknowledged that he leased the Gold Coast flat, he claimed he did so for Olinder, and that the drugs and related paraphernalia found inside the flat belonged to Olinder. It was not until the applicant’s evidence that there was a real possibility that the applicant was in joint possession of the drugs with Olinder. It was simply a case of the defence having adduced evidence that, if accepted, substantially linked Olinder to the Gold Coast flat and its contents, and thereby introduced another dimension to the case that the prosecution and the trial judge had to address. As this all came about because of the applicant’s evidence, it cannot be said that the defence were taken by surprise or disadvantaged in any way. See HKSAR v Wong Chun Yau[25] CACC l18/2019, unrep., 25 March 2021, [2021] HKCA 120, at [64].
21. The issue before the jury always remained whether the applicant was in possession of the drugs for the purpose of trafficking in them. The prosecution appropriately invited the jury to consider whether the applicant possessed the drugs either solely or jointly with Olinder for the purpose of trafficking in them. The judge in his summing-up to the jury explained that they had to be sure that the applicant was in possession of the drugs. He told the jury:
“Let me explain to you the concept of ‘possession’. A person is in possession of an object if all the following conditions are satisfied, that is to say, (1) the object is in the person’s actual physical custody, for example, in his hand or in his pocket, or is otherwise within his control, for example, in his vest or in his bedroom; (2) the second condition is that the person knows that the object is there; (3) the third condition is that the person has the intention to exercise custody or control over the object.”[26]
22. The judge went on to explain that an object may be possessed by more than one person at the same time. He repeatedly reminded the jury, that they had to be satisfied that the applicant knew there were drugs in the Gold Coast flat and he intended to exercise custody or control over them.[27]
23. I am not persuaded that this ground of appeal is reasonably arguable.
Ground 2
24. The applicant complains that his trial counsel, Mr Davies, and the instructing solicitor, Mr Ng Ge Bun, were flagrantly incompetent in that they failed to advise or explain to him about the possible challenge against the admissibility of the CCTV evidence and the alleged verbal reply to the Customs officer that the Gold Coast flat was “For party and work”[28].
25. Both Mr Davies[29] and Mr Ng[30] have filed sworn evidence in addressing the applicant’s allegations against them. Mr Ng stated that he had a conference with the applicant on 5 November 2019, during which matters and issues to be agreed or admitted were explained to him. The applicant signed on a facsimile transmission message[31] to acknowledge that he understood and confirmed his instructions that the admissibility of any admission would not be challenged. He wrote the word “understand” and signed both the facsimile transmission message and the Case Management Questionnaire. The applicant further confirmed these instructions in another conference on 19 December 2019.
26. Mr Davies produced his attendance notes and deposed that he had a conference with the applicant on 25 September 2020. The instructions he received were that the applicant did not say the verbal reply as alleged. He had neither been instructed that the applicant made any statements involuntarily nor had he been informed of any grounds to challenge the admissibility of any statements. He explained that although the court had a discretion to exclude the admission if it would result in an unfair trial, he was of the view that no such circumstances existed in the present case and that there was no reasonable prospect of the court excluding the statement.
27. Mr Davies also noted that the previous counsel, who had been assigned to represent the applicant, informed the court at the case management hearing that there would be no challenge as to the voluntariness of any admissions and no voir dire would be required on the admissibility of the evidence.
28. It should be noted that the Customs officer recorded the applicant’s reply, amongst other things, in his notebook, which was translated to the applicant but he refused to sign it. The Customs officer gave evidence to this effect, although the prosecution did not adduce into evidence the notebook at trial. He was cross-examined about the matter by Mr Davies, who confirmed that the applicant refused to sign the post record and who explored whether there may have been a misunderstanding or miscommunication because of their respective level of proficiency in English was not good at the time.[32] The matter was dealt with effectively by Mr Davies on behalf of the applicant, which he addressed in his closing speech to the jury.[33] This was reflected in the judge’s summing-up to the jury.[34]
29. It was correctly acknowledged by the applicant in his written submission that he was bound by the way in which counsel conducted the case at trial, including all tactical and forensic decisions involved.
30. Mr Davies competently addressed this matter in light of the circumstances of the case. He made a realistic and practical assessment as to how the matter should be dealt with at trial. It was always going to be an issue that he made the comment to the Customs officer that the Gold Coast flat was “For party and work” upon the finding of a tenancy agreement in his name. At the time, the Customs officers had found a quantity of cocaine in the Avignon flat leased by him, to which he later pleaded guilty to trafficking. For some reason, the finding of the drugs in his flat was not adduced into evidence at trial by the prosecution.
31. As for the CCTV evidence, Mr Davies stated that he had been instructed by the applicant in his letter dated 9 November 2020 that the CCTV evidence would be used as part of the defence case, which he considered supported the applicant’s account of the events. In a subsequent conference on 6 March 2021, the applicant further confirmed these instructions. At no time had he been informed by the applicant that the accuracy or admissibility of the CCTV evidence should be challenged.
32. What the applicant is now alleging in relation to the CCTV evidence is completely contrary to his evidence and the defence that he ran at trial.
33. In order to succeed under this ground the incompetence must be flagrant and fall well short of what would be expected of defence counsel. See Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126. I am satisfied that the applicant was competently legally represented and that he received a fair trial.
34. I am not persuaded this ground of appeal is reasonably arguable.
35. I should add that the total failure of substantiating this ground of appeal raises the issue of whether a loss of time order should be made in accordance with Practice Direction SL4. When I enquired of the applicant as to who assisted him in drafting the grounds of appeal and the written submissions, he said it was a fellow prisoner at Stanley prison, a Mr Conte from Africa. The legal representatives who have been accused of incompetency have had to spend a considerable amount of time and effort in addressing unmeritorious allegations levelled against them by the applicant. This is a very serious ground of appeal that should only be made after careful and proper consideration, where the alleged flagrant incompetence is not simply based on a mere assertion but is constituted by an error of sufficient proportion and consequence that it resulted in an unfair trial. To think this ground has been formulated by a fellow prison inmate of the applicant, without the requisite legal qualifications and training, is a matter of grave disquiet. There is no coincidence that there has been an increased frequency in the number of appeals from defendants acting in person, alleging flagrant incompetence by their legal representatives at trial, emanating from Stanley prison and without due regard to the relevant principles and procedures. I have given the matter very careful consideration but have decided not to order loss of time although the applicant is on notice that he came close to receiving such an order.
Ground 3
36. It was held by the Court of Final Appeal in HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 354[35] that if there was evidence upon which a reasonable jury might return an alternative verdict, even if it was not raised by the parties or even inconsistent with the defence run by the accused, the trial judge was under a duty to place that alternative before the jury. The threshold requirement was that the evidence in support of an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it.
37. In the more recent case of HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, the Court of Final Appeal held that where there was an obvious alternative verdict which was supported by the evidence, it would be incumbent on a judge to direct a jury as to the alternative options open to it. The Court noted that the way the defence case was run on the facts was relevant in determining whether there was sufficient evidence to support an obvious alternative verdict, and if a factual alternative did not arise in the way the defence case was run, this would in most cases be a decisive factor. The Court also urged that when such an issue arose it would be good practice to elicit the views of the parties.
38. In the present case, the applicant denied any knowledge about the existence of the drugs and therefore did not possess them.[36] The proposition of an alternative offence of permitting the premises to be used for the purpose of drug trafficking was not obvious and accordingly the judge was not required to leave it to the jury to consider as an alternative verdict.
39. As correctly pointed out by the judge when he discussed the issue with defence counsel, “Either he knew or he did not know. If he did not know then that charge is not on.” [37] Defence counsel accepted the judge’s comments without demur and was content that the alternative should not be put to the jury. [38]
40. This ground of appeal is misconceived.
Ground 4
41. It is contended that the judge failed to direct the jury in respect of uncharged acts, namely on two occasions prior to the date of the offence on 19 March 2018, which was not particularised as “on or about”, the applicant was challenged in cross-examination that based on CCTV footage he took a suitcase to the Gold Coast flat on 6 March 2018, and he stayed in the flat for about one hour on 18 March 2018, for the purpose of packaging the drugs. It is complained that the suggestion by prosecuting counsel that on the occasions he was in the flat he was engaged in dealing with the drugs concerned uncharged acts.
42. There is no substance to this complaint as prosecuting counsel was concerned with the drugs and the related paraphernalia that were found inside the flat at the time of his arrest. The CCTV footage depicting the applicant’s movements in and out of the flat were highly relevant and probative as to his connection to the flat and knowledge of the drugs and related paraphernalia that were found inside.
43. In HKSAR v Ho Man Ho [2012] 1 HKLRD 188, the Court of Appeal stated:
“15. In our judgment, the legal principle applicable to the present case is: where an activity involves more than one act, it is legitimate to join these acts in one charge (see: Jemmison v Priddle [1972] 1 Q.B. 489, 495D). The court, in considering whether an act or acts performed by a defendant constitute commission of an offence or offences, needs to answer the question by applying common sense and deciding what is fair in the circumstances. When a defendant has committed similar acts that are connected in time and place or by their common purpose, such acts can fairly be viewed as the same criminal activity. In those circumstances, it is open to the prosecution to lay a single charge against the defendant.”
44. In the circumstances of this case, the applicant’s visits to the Gold Coast flat prior to 19 March 2018 were not uncharged acts and were part and parcel of the offence for which he was charged.
45. This ground of appeal fails.
Ground 5
46. The subject of this ground concerns the judge’s directions to the jury in relation to “possession” and “joint possession”. The judge gave a clear and complete explanation to the jury on the meaning of possession and joint possession.[39]
47. Whilst the judge did not specifically mention the last paragraph of Specimen Direction 61.3, he nevertheless emphasised to the jury the importance of the requirement of “the intention to exercise custody or control” over an object and gave examples to assist the jury in understanding the concept of possession.[40]
48. In answer to the applicant’s submission, the judge did not direct the jury that the mere proof of knowledge of the drugs on the part of the applicant would constitute the offence of trafficking. He took the jury through the elements of the offence of possession of dangerous drugs for the purpose of trafficking in them.
49. There is no substance to this ground of appeal.
Ground 6
50. Rather surprisingly, the applicant claimed in his written submissions that he had a clear record at the time of trial and the judge should have given him a good character direction in his summing-up to the jury.
51. The applicant did not have a clear record.[41] On 19 August 2019, he pleaded guilty to a count of trafficking in a dangerous drug, whereupon he was committed for sentence to the Court of First Instance (HCCC 277/2019). This was prior to the trial of the present offence which commenced on 15 March 2021. What is quite extraordinary about this other case is that the applicant had been charged with trafficking in a dangerous drug in respect of a quantity of cocaine found in the Avignon flat on 19 March 2018, and was joined with three other defendants on the charge sheet, including Olinder, who faced two separate charges of possession of a dangerous drug and trafficking in a dangerous drug. Olinder also pleaded guilty to the charges he faced. At the time of his plea, the applicant agreed to a summary of facts in which he was referred to as D3, and which, so far as material, read as follows:
“23. On 19 March 2018 at around 12:15 p.m., customs officers intercepted and arrested D3 for investigation at Avignon, No. 1 Kwun Chiu Road, So Kwun Wat, Tuen Mun, New Territories, Hong Kong (‘Avignon’).
24. At the time of arrest, D3 was in possession of a resident card and 2 keys.
25. Under caution, D3 admitted he lived at Flat A, 6th Floor, Tower 7 of Avignon (‘Loc-4’).
26. Loc-4 was rented by ‘Prisco Arts Trading Enterprises Limited’ on 1 July 2017 at HKD 30,000 per month and was last checked free from contraband by the landlord before the tenancy started. Rent was paid by D3 in cash.
27. Search was then conducted on the same day inside Loc-4, during which 1 plastic bag containing 11.3 grammes of a solid containing 9.36 grammes of cocaine (‘E10’) was seized from the oven inside the kitchen (Charge 5).
28. A tenancy agreement with D3 as the tenant of Flat A, 22nd Floor, Block 3, Hong Kong Gold Coast Phase 1, No. 1 Castle Peak Road, Tuen Mun, New Territories, Hong Kong (‘Loc-5’) was also seized from Loc-4.
29. Under caution, D3 claimed he worked and partied at Loc-5. In subsequent cautioned the VRI, D3 admitted that he lived at Loc-4 which was rented by his friend.
…
48. D3 now admits and accepts he possessed the dangerous drugs seized from Loc-4 for the purpose of unlawful trafficking (Charge 5).”
52. After his conviction in the present case, he was also sentenced in relation to this other case by the same judge, who imposed a sentence of 38 months’ imprisonment for the offence in that case.
Ground 7
53. This general ground of appeal that the conviction is unsafe or unsatisfactory is without merit. Having found that the previous grounds of appeal were not reasonably arguable, there is nothing to indicate that the applicant’s conviction was unsafe or unsatisfactory.
Conclusion
54. The grounds raised by the applicant are not reasonably arguable and his application for leave to appeal against the conviction is refused.
55. The applicant is reminded of his right to renew his application 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 renewal of his application.
| | (Kevin Zervos) |
| | Justice of Appeal |
Mr Nicholas Wong, SPP, of Department of Justice, for the respondent
The applicant appears in person
[1] Appeal Bundle, pp 25T-26C.
[2] Appeal Bundle, p 4, at [1].
[3] Appeal Bundle, p 26D.
[4] Appeal Bundle, p 30N.
[5] Appeal Bundle, pp 13L, 26N-27C.
[6] Appeal Bundle, p 6.
[7] Appeal Bundle, pp 6-7.
[8] Appeal Bundle, p 31N.
[9] Appeal Bundle, p 34O.
[10] Appeal Bundle, p 5.
[11] Appeal Bundle, p 45C.
[12] Appeal Bundle, p l0Q-S.
[13] Appeal Bundle, pp 26E and 39T.
[14] Appeal Bundle, pp 32F-35C.
[15] Appeal Bundle, p 40O-R.
[16] Appeal Bundle, p 35Q-U.
[17] Appeal Bundle, p 36D-H.
[18] Appeal Bundle, pp 36T-37M.
[19] Appeal Bundle,pp 37P-38E.
[20] Appeal Bundle,pp 38K-39J.
[21] Appeal Bundle, p 39P-S.
[22] Appeal Bundle, p 39M-O.
[23] Appeal Bundle, pp 28K and 40B-E.
[24] Mr Wong informed the Court that during the course of the prosecution evidence prosecuting counsel agreed to admit as a fact the finding of the fingerprint of Olinder. See Appeal Bundle, p 9 (2nd Admitted Facts dated 17 March 2021).
[25] Date of judgment: 25 March 2021.
[26] Appeal Bundle, p 14J-P.
[27] Appeal Bundle, pp 14S-16H and 44T-45R.
[28] Appeal Bundle, pp 26D, l 25Q.
[29] Affirmation of Oliver Davies dated 20 November 2021.
[30] Affirmation of Ng Ge Bun dated 19 November 2021.
[31] Prepared by Mr Philip Ross (the predecessor of Mr Oliver Davies).
[32] Appeal Bundle, pp 80T-81S, 125N-Q, 134U-135F, 147N-148E and 148K-149T.
[33] Appeal Bundle, pp 109U-111D.
[34] Appeal Bundle, pp 25U-26E, 28A-C, 28R-30J and 39S-40A.
[35] Tab 4 of Applicant’s List of Authorities.
[36] Appeal Bundle, pp 10S, 73A, 79H-J, 82U.
[37] Appeal bundle, p 168C-D.
[38] Appeal bundle, p 168L.
[39] Appeal Bundle, pp 14J-16H.
[40] Appeal bundle, pp 14P and U, and 15F, L and S.
[41] Appeal Bundle, p 3.