Press Summary (English)

Press Summary (Chinese)

FACC No. 12 of 2023

[2024] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2023 (CRIMINAL)

(ON APPEAL FROM CACC NO. 160 OF 2010)

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J U D G M E N T

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Chief Justice Cheung:

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

Mr Justice Ribeiro PJ:

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

Mr Justice Fok PJ:

A. Introduction

3. This appeal arises out of the appellant’s conviction before Mrs Justice V Bokhary (“the Judge”) sitting with a jury, on 23 April 2010, of one count of attempting to traffic in a dangerous drug, namely 6,605.68 grammes of cocaine. It raises an important question as to the scope of a criminal defendant’s right of silence in the context of later allegations of police impropriety. It also affords an opportunity for the Court of Final Appeal to consider a number of concerns expressed by the Court of Appeal about the right of silence in this jurisdiction.

A.1 The facts and the appellant’s conviction

4. On 16 February 2009, 20 cartons of air cargo arrived in Hong Kong on a flight from Amsterdam. On examination, the police found 25 bags of powder, containing the cocaine the subject of the charge, in two of the cartons. Dummy bags of baking powder, dusted with fluorescent powder, were substituted for the bags of cocaine.

5. With an airway bill given to him by one of the appellant’s co-accused, D2, at an address in Tuen Mun, a delivery driver collected the cargo from the airport and drove back to Tuen Mun where the appellant and D2 then put the cargo into larger cartons. The appellant and D2 then loaded the cargo, now in the larger cartons, onto another van which then drove to Granville Circuit in Tsim Sha Tsui. D2 travelled in the van with the cargo and the appellant drove a private car to Granville Circuit. Together with D2, the appellant moved the cartons into an address in Wing Hing Mansion, to which D2 had the key. About half an hour after their arrival, they were intercepted by police outside Room C in the building and apprehended after a struggle. They were taken into Room C where the cartons, including those containing the bags of dummy drugs were found. The appellant and D2 were then arrested. Two other co-accused (D3 and D4), alleged to have been lookouts outside the addresses in Tuen Mun and Granville Circuit, were also arrested.

6. The appellant remained silent under caution. Traces of fluorescent powder were found on his nail clippings and his fingerprints were also identified on a box and on some adhesive tape that was found in Room C.

7. The appellant’s case was that he did not know the cargo contained dangerous drugs. He testified at trial that he was asked to undertake a casual job to move some goods by a person called Ah Chu, whom he had come to know and for whom he had work