IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 518 OF 2012
(ON APPEAL FROM DCCC NO. 554 OF 2012)
||YEUNG CHI KEUNG (楊志強)
|Before: Hon Lunn JA, Barnes and McWalters JJs in Court
|Date of Hearing: 19 November 2013
|Date of Judgment: 19 November 2013
|Date of Reasons for Judgment: 11 December 2013
REASONS FOR JUDGMENT
Hon Lunn JA (giving the Reasons for Judgment of the Court):
1. The applicant sought leave to appeal his conviction after trial on 14 December 2012 by District Court Judge S. D’Almada Remedios of a charge of unlawfully trafficking in dangerous drugs on 26 March 2012, namely 32.30 grammes of ketamine and 2.79 grammes of cocaine and in respect of the sentence of 5 years and 6 months’ imprisonment imposed on him on the same date for that conviction. Mr McGowan appeared for the applicant in respect of the application for leave to appeal against conviction, whereas the applicant appeared in person in respect of the application for leave to appeal against sentence. We dismissed each of the applications and said that we would give our reasons for so doing in due course. We do so now.
The prosecution case
2. The prosecution case at trial was that, whilst seated in the rear seat of a taxi, parked outside Wah Yu Houses, Wah Fu Estate in Pok Fu Lam the applicant had received a pink plastic bag, which contained the dangerous drugs the subject of the charge, from Tam Lok Sin (Charge 2). The latter pleaded guilty to a separate charge (Charge 1) on the same charge sheet, in which the Particulars of Offence alleged against him were identical to those alleged against the applicant in Charge 2.
3. The prosecution relied on the testimony of the taxi driver, Mr Lee Cheuk Fai, and PC 54753, Koo Tin. Mr Lee testified that the applicant had boarded his taxi in Wanchai at about 5:45 p.m. and had asked to be taken first to Wah Fu Estate and then to Tin Wan. On arrival at the former destination the applicant had made a telephone call and said, “I have arrived at the entrance of the Estate”. Mr Lee drove his taxi to the entrance of Wah Yu House where he parked the vehicle and turned off the engine. After a little while the applicant disembarked from the vehicle saying that he was leaving his laptop in the taxi. Mr Lee noticed a laptop and a yellow soft drink carton box lying on the rear seat of the vehicle. The applicant smoked a cigarette as he stood nearby to the taxi. Whilst he was doing that, Mr Lee noticed a marked police van parking nearby, opposite Wah Yu House. One or two minutes after the applicant had re-boarded the taxi, Mr Lee noticed a man walking out of Wah Yu House towards the taxi. Assuming the man was going to board the taxi, he re-started the taxi engine. He said that the right rear door of the taxi was opened. He did not know if that was done by the applicant or the man outside the taxi. The applicant spoke to that man, “Get into the car first, get into the car first.” Then, he saw policemen running towards his vehicle.
4. PC 54753 said that both prior to and at the time of the handover of the pink plastic bag he occupied a seat in the second row of a marked police van on its nearside, which was parked in the vicinity of Wah Yu House, as described in a sketch that he drew. He observed that the applicant disembarked from the parked taxi, after which he smoked a cigarette and conducted a telephone conversation on his mobile telephone before returning, via the left rear door of the taxi, to resume his seat. Soon afterwards, at about 18:04, he saw a man, identified subsequently to be Tam Lok Sin, emerge from Wah Yu House and walk to the taxi. The right rear door of the taxi was opened and he observed Tam Lok Sin using his right hand to pass the pink plastic bag to the extended right hand of the applicant. He was about 8 to 10 meters away from the two men as the plastic bag was handed between them. The light by which he made the observation was very bright.
5. Having observed the transfer of the plastic bag from Tam Lok Sin to the applicant, PC 54753 approached the applicant as he sat in the rear seat of the taxi and identified himself, showing him his warrant card after which he conducted a search of the rear seat. He found a laptop computer and the pink bag. Inside the latter, he found yellow coloured pellets contained in a plastic re-sealable bag inside a lemon tea carton box and a white crystalline substance contained in a Marlboro cigarette pack, which he suspected to be dangerous drugs. He received no response from the applicant when he asked him, “What are these?”
The defence case
6. The applicant gave evidence in the defence case. He said that he lived at Wah Fu Estate with his mother and younger sister. He accepted that he had boarded the taxi in Wanchai and that he was in possession of a laptop computer, which he said belonged to his friend Alan. Having collected the computer from a computer repair shop in Wanchai he was delivering it to Alan at Wah Yu House first, before continuing his journey to meet his girlfriend at Tin Wan. He had provided the two destinations to the taxi driver.
7. On arrival at the entrance of Wah Fu Estate the applicant said that he called Alan on his mobile telephone to advise him of his impending arrival. He made a second telephone call to Alan confirming his arrival a little while later at Wu Fu House. Having been told that Alan needed to go to the toilet before he could meet him, the applicant got out of the taxi and smoked a cigarette. Although he made multiple telephone calls to Alan as he waited he was unsuccessful in making a connected call. Finally, an unknown person answered his last call telling him to call again later. As a result, the applicant resumed his seat in the taxi and continued to wait.
8. Then, the applicant said that he saw Tam Lok Sin, with whom he was acquainted, approaching the taxi from its right-hand side. So, he invited him to board the taxi to have a chat. For his part, Tam Lok Sin opened the taxi door and threw a plastic bag inside the taxi. He did not answer the applicant’s enquiries as to what it was. Then, a party of police officers arrived and intercepted the two of them. The applicant said that he did not touch or open the plastic bag and did not know what it contained. It was an admitted fact that neither the applicant’s DNA nor his fingerprints were found on the pink plastic bag or any of its contents.
Reasons for Verdict
9. At an early stage in her Reasons for Verdict the judge identified what she described as being the main issue, namely whether or not it was proved that the applicant was in possession of the dangerous drugs. She posed a series of rhetorical questions relevant to the resolution of that issue:
“(i) How did the plastic bag with the drugs get from D1’s hand into the rear seat of the taxi?
(ii) Did D1 hand over and the defendant receive the plastic bag from D1 (as was the police officer PW2’s evidence)? or
(iii) Did D1 throw the plastic bag into the taxi unexpectedly and with (out) any prior knowledge or arrangement of the defendant? (the defendant’s evidence)
(iv) If the defendant possessed the plastic bag did he have had knowledge of the dangerous drugs in the bag?”
She said that a resolution of those issues, “turns principally on the credibility of PW 2, the police officer”. (PC 54753)
10. The judge first analysed the evidence of the applicant. She found that his account of having arranged to meet Alan and, by coincidence, encountering an acquaintance, Tam Sin Lok, who had then thrown the plastic bag into the rear of the taxi was, “wholly unworthy of belief”.
11. The judge noted that although the applicant testified that he had made arrangements to meet Alan in order to return to him his laptop the applicant had “lost contact” with Alan up until the time of the trial. She noted that the applicant testified that he did not know why Alan had not turned up to collect his computer, notwithstanding the fact that the applicant remained together with the police outside Wah Fu House some time after he had been intercepted. In the result, the judge determined Alan to be a “fictitious person made up by the defendant” and the applicant’s testimony of the arrangement to meet Alan to be a “fabricated account in an attempt to give an innocent explanation” of why the applicant was there. The judge found that the phone calls that the applicant made were to Tam Lok Sin, not to Alan.
12. The judge rejected the applicant’s testimony that he had invited Tam Lok Sin to board the taxi in order to exchange pleasantries. She determined that the applicant had twice asked Tam Lok Sin, “Get on board first” in order to make for a more discreet exchange of the plastic bag, given that the presence of police officers in the immediate vicinity was obvious. Finally, the judge concluded that the fact that Tam Lok Sin emerged from Wah Fu House and made his way directly towards the parked taxi was because the applicant had telephoned him from the entrance to Wah Fu Estate to advise him of his impending arrival.
13. The judge said that she found that PC 54753 had been able to see Tam Lok Sin, “hand the plastic bag to the defendant and the defendant receive it.” In making that finding, she said that she was aware of the absence of DNA or fingerprint evidence connecting the applicant with the plastic bag or its contents. In the result, she concluded that the applicant, “took possession of the plastic...