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Yuen Kwai Choi v Hksar

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date09 April 2003
Year2003
Citation[2003] 2 HKLRD 176; (2003) 6 HKCFAR 113
Judgement NumberFACC6/2002
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC000006/2002 YUEN KWAI CHOI v. HKSAR

FACC No. 6 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2002 (CRIMINAL)

(ON APPEAL FROM CACC NO. 166 OF 2000)

_____________________

Between:
YUEN KWAI CHOI Appellant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Sir Noel Power NPJ and Sir Gerard Brennan NPJ

Date of Hearing: 11 March 2003

Date of Judgment: 9 April 2003

_____________________

J U D G M E N T

_____________________

Chief Justice Li:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3. The appellant together with another defendant (whom I shall call D1) were convicted after trial before a judge (Deputy Judge Longley) and jury in the Court of First Instance of trafficking in a dangerous drug, namely, almost 30 kg of what is commonly known as "ice". His appeal against conviction was dismissed by the Court of Appeal (Mayo VP and Stock JA, Keith JA dissenting). The Appeal Committee granted leave to appeal on the ground of substantial and grave injustice.

4. The present appeal involves two main issues: first, whether, in the circumstances of this case, the trial judge erred in omitting to give a "lies" direction to the jury in relation to the appellant's case was a material irregularity; and second, if he did, whether the majority of the Court of Appeal was justified in applying the proviso under s.83 of the Criminal Procedure Ordinance, Cap. 221, in upholding the conviction.

Unusual features in this case

5. The appellant admitted possession of the travelling bag and the suitcase which contained the drug. The issue at the trial was whether he had knowledge of the contents thereof. The burden was on him to rebut, on the balance of probabilities, the presumption arising from s.47(2) of the Dangerous Drugs Ordinance, Cap. 134, to the effect that he knew what was contained inside the bag and the suitcase. His evidence and hence credibility were of critical importance.

6. This case was complicated by two unusual features which have a bearing on the appellant's evidence. First, the informer who gave information to the police about the drug transaction was called as a defence witness for the appellant. He admitted that he was involved in the transaction and that it was he who had made use of the appellant to make delivery of the drug for him without telling the appellant what was really contained in the bag and the suitcase. His dealing with the appellant, particularly his contact with the appellant on the day of the transaction, was relevant to the issue of knowledge on the part of the appellant.

7. Secondly, D1 was permitted by the trial judge to adduce "rebuttal evidence" after the appellant had testified in a way which was detrimental to D1's case. The rebuttal evidence, if accepted by the jury, would tend to contradict that part of the evidence given by the appellant with regard to his contact with the informer on the day of the transaction.

8. Since the evidence adduced at the trial was not entirely straightforward, it is necessary to set it out in some detail in order to decide the two issues in this appeal.

The prosecution case

9. The prosecution's case as presented before the jury was as follows. In the morning of 25 May 1999, the police received information that a drug transaction would take place later that day involving a private car, a SAAB of registration number HG 2889 which was owned by the appellant. Acting on such information, sometime after 11 am, the police started to keep observation on the SAAB which was then parked inside the Kwong Fat Car Park in Mongkok.

10. Later that day, the police learned through the informer that the drug transaction would take place at 4 pm at the Holiday Inn in Tsimshatsui and that another private car, a Volvo of registration number FM 2119 which was also owned by the appellant would also be involved.

11. Sometime shortly after 4 pm, the police saw that the SAAB came out of the car park, drove to the Stanford Hotel to pick up D1 and then went to the Holiday Inn. There, the SAAB stopped near the Volvo at which the appellant was waiting. D1 got off and joined the appellant. The appellant was seen to open the boot of the Volvo, took a travelling bag from the boot and handed it to D1. D1 took it, opened it and had a look at what was inside with the appellant looking on. After that, he took the bag out of the boot and put it on the ground. Then, both the appellant and D1 together lifted a suitcase out of the boot of the Volvo and put it on the ground. D1 placed the bag on the top of the suitcase, strapped them together and dragged them along the ground onto the pavement. They were then arrested by the police.

12. The prosecution alleged that both D1 and the appellant had possession of the bag and the suitcase, that both knew the bag and the suitcase contained ice and that they were involved in the trafficking of the drug.

D1's case

13. D1 did not testify against the appellant. But to understand why D1 applied to call rebuttal evidence, it is necessary to look at his evidence. He said that he was earlier approached by another man to move luggage in return for a reward of $10,000, but had not made up his mind whether to do so or not. He was later driven in the SAAB to the Holiday Inn where he met the appellant. He was handed the bag by the appellant which he instinctively took and put on the ground. He then helped the appellant to take the suitcase out of the boot of the Volvo. He did not look inside the bag. Nor did he drag the bag or the suitcase onto the pavement.

14. His defence was simply that he had no intention to take possession of the bag or the suitcase or the contents therein and that he did not know what was inside these bags. Whether he had handled the bag and the suitcase and whether he had opened the bag and examined its contents in the manner as alleged by the prosecution were decisive factors insofar as his case was concerned.

The appellant's case

15. The appellant's defence was that although he had physical possession of the bag and the suitcase, he had no knowledge of their contents. On 24 May, his friend, a Mr Liu Yat Sing, borrowed his SAAB in order to make a delivery. The appellant offered to assist him. On the following day, Liu came to see the appellant in the SAAB together with the bag and the suitcase. The bag and the suitcase were transferred from the SAAB to the boot of the Volvo. The appellant was told by Liu that these two pieces of luggage contained samples of industrial raw materials which were to be handed to a customer later in the day when the appellant would be told where to make the delivery. They parted shortly after 10 am.

16. The appellant said he then washed his Volvo and drove it to the Mongkok area. He parked it in a car park, but had now forgotten which car park it was. He then did some shopping and had lunch. He said he did not have any further contact with Liu that day except one telephone call in which he was told to go to the Holiday Inn to hand the two pieces of luggage to a customer. He had no idea that the luggage contained anything other than industrial raw materials.

17. As instructed by Liu, the appellant arrived at the Holiday Inn in his Volvo sometime after 4 pm and parked his car outside. Liu then came in the SAAB with D1. D1 got out of the SAAB and walked over to him at the rear of the Volvo. The appellant then opened the boot of the Volvo and handed the bag to D1 who attended to the bag. Together they put the suitcase onto the ground. D1 then put the bag on top of the suitcase and dragged them onto the pavement. The appellant went back to the driver's door, stood there, nodded and smiled at D1. It was then that the police arrived and arrested them both.

18. The appellant's defence was basically that he was told by Liu, whom he believed, that the bag and the suitcase contained industrial raw materials and that he did not know they contained "ice".

19. Liu gave evidence on behalf of the appellant. He said he was the police informer. There was no evidence from the prosecution that he was not. He told the police that he was instructed by a person called Chan to deliver some dangerous drug to a purchaser in return for a reward of $50,000. He was promised by the police another reward of $20,000 if the purchaser was apprehended. He set about doing this and borrowed the SAAB from the appellant. He also asked the appellant to assist him in delivering the drug to the customer. However, he told the appellant what was to be delivered was industrial raw materials.

20. In the morning of 25 May, after he had obtained from Chan the drug contained in the bag and the suitcase, he took them to the appellant and transferred them to the boot of the Volvo. He told the appellant that he would pick up a customer and asked the appellant to wait for his instructions. Liu then drove the SAAB and parked it in the Kwong Fat Car Park shortly before 11 am. Later that day, having received further instructions from Chan, he informed the police that the Volvo was also involved. He was assured by the police that no arrest would be made on him or the appellant. He then picked up D1 and drove him to the Holiday Inn to meet the appellant. At the Holiday Inn, having dropped off D1, Liu drove it to a nearby spot. When he came back, he saw that the appellant and D1 had already been arrested by the police.

The rebuttal evidence

21. It can be seen that if the appellant's evidence as to what happened outside the Holiday Inn was to be believed, this would support the prosecution's...

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