HKSAR v. GURUNG LAXMAN

CACC 385/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 385 OF 2015

(ON APPEAL FROM DCCC 501 OF 2015)

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REASONS FOR JUDGMENT

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1.  The applicant was tried in the District Court before District Judge Sham (“the judge”) on a charge sheet containing a single charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 2 March 2015 at a hut at the rear lane of Battery Street Sitting-out Area, Yau Ma Tei, the applicant unlawfully trafficked in 7.23 grammes of a crystalline solid containing 7.09 grammes of methamphetamine hydrochloride.

2.  He pleaded not guilty to this charge but on 13 October 2015 he was convicted of it.  On the same day he was sentenced to 5 years 6 months’ imprisonment.

3.  He subsequently applied for leave to appeal both his conviction and his sentence.  In respect of his application for leave to appeal against conviction he appeared in person but he was represented on his application for leave to appeal against sentence.

4.  At the hearing of these applications I allowed them and granted leave to the applicant to appeal both his conviction and sentence.  I said I would hand down my reasons for doing so at a later date.  This I now do.

The prosecution case

5.  The applicant is a 32-year-old Hong Kong resident of Nepalese ethnicity.  The only issue in his trial was whether he had the drugs for the purpose of trafficking in them, as the prosecution alleged, or whether he had them for the purpose of consuming them, as he claimed.

6.  It was not disputed that around 9:15 am on 2 March 2015 the police went to a makeshift shelter in the sitting-out area at the rear of Battery Street, Yau Ma Tei.  The makeshift shelter was a bed made up on a sofa with some wooden planks around it to provide shelter.  It had no door or window and was open to public view.

7.  Within this shelter the applicant sat on the sofa with another man.  In fact, at the time he was sitting on a packet of drugs so that as soon as he stood up, as he was instructed to do by the police, the packet of drugs was revealed.  The drugs were contained in three bags.  One large bag contained almost the whole of the drugs[1] and there were two smaller bags.  The drugs were wrapped in tissue paper and bound together with cellotape into one single packet.

8.  It was an admitted fact that the street value of the drugs was estimated to be around $2,863.

9.  Facts were also admitted as to the applicant’s drug history.  It was an admitted fact that he was a drug abuser prior to his admission to Christian Zheng Sheng College from 13 May 2002 to 14 July 2005.  It was also an admitted fact that he entered residential drug rehabilitation with St. Stephen’s Society from 6-17 July and 19 July - 12 August 2012.

The defence case

10.  The applicant gave evidence and testified that he was a long‑term drug abuser, having first started to take drugs in 1999 when he was only 16 years of age.  After leaving the Christian Zheng Sheng College he remained clean until 2010.  In that year he relapsed after his god brother died.  He said that although he benefited from his time with St Stephen’s Society he lacked the mental strength to break free of his addiction. 

11.  He claimed that in the three months before his arrest he was consuming about one gramme of “Ice” per day by smoking it about 4 to 5 times a week.  He would consume the drugs at home because it was safer to do it that way.  He said he would usually buy 7 grammes of “Ice” at each purchase as that would be enough to last him for a week.  He normally purchased drugs to last for 7-10 days because it saved him the trouble of having to buy drugs on a daily basis. 

12.  He said he worked part-time at a garage from which he received $8,000-$9,000 per month.  From this amount he would sometimes give his parents $2,000-$3,000.[2]

13.  In respect of the drugs the subject of the charge he said that he obtained them from a new dealer introduced to him by his friend.  He said that at around 11 pm the previous evening he went to a games centre to buy drugs. He paid $1,300 for 7 grammes of “Ice” and then went home to wait for it to become available.  A few hours later, at around 3 to 4 am in the morning, whilst he was at home, he received a call telling him to go to the sitting-out area at Battery Street.  He arrived there around 5 am.  When he was given the drugs he was told that as he was a first time customer of this supplier he was being given two extra packets as a bonus.  After receiving the drugs, he fell asleep because he had not taken drugs since 1 March and he was suffering from withdrawal symptoms. 

14.  After waking up, he said he just sat there and talked to his friends and it was in these circumstances that he came to be there when the police arrived and found the drugs.  He claimed he had intended to take the drugs home for his subsequent consumption.

15.  In cross-examination it was put to him, which he denied, that he intended to sell the two smaller bags in order to fund his addiction.  The prosecutor also suggested:

“Q.  And you had this large quantity of drugs not just for your own consumption but to sell to others in order to make money to fund your habit.

A.  So where is the evidence that I sell and traffic and then ‑‑ yeah, and whom did I traffic it.  I mean sell it.”

16.  The prosecutor never suggested that he possessed all of the drugs for the purpose of trafficking.

17.  However, the applicant did agree that he was purchasing the drugs at an undervalue. 

The Judge’s Reasons for Verdict

18.  The judge analysed the evidence of the applicant before rejecting him as not being credible in respect of his claim that the drugs were for his own consumption.  He concluded:

“I do not believe that he had the drugs for his own consumption, because his behaviour was not consistent with those who buy drugs for own use.”

19.  The judge was here referring to conduct by the applicant that he found inconsistent with that of drug addicts.  He said that a purchaser of drugs would usually take the drugs home immediately they have purchased them in order to avoid detection by the police or other law enforcement agents.  The buyer would want to find a safe place to hide the drugs and would not stay out on the street with the drugs on him for a lengthy period of time.  However, persons involved in the sale of drugs were in a different position from drug users.  He said:

“ On the other hand, because of the different nature of the trade, for those who have to go out to sell drugs, these traffickers need to stay out in order to carry out their trade. They will have to run the risk of being arrested, and this is the risk they have to take.”

20.  The judge said he did not know what time the applicant obtained the drugs[3] but that it was clear from the evidence that after he received them he fell asleep for some time and when he woke up he stayed there and talked to his friend.  The judge noted that when the applicant was asked why he remained in the sitting-out area:

“His answers were: the dangerous drugs were bought in that area; ‘my friend was also there’; he ‘just sit and talk with my friend’.”

21.  The applicant’s decision to remain out with the drugs rather than to immediately take them home was a major element in the judge’s reasoning by which he reached the conclusion that the applicant intended to traffic in these drugs.  The judge said:

“ I see no evidence to suggest that he had the intention at that time to go home. As he had told the court, he was at that time suffering withdrawal symptom, feeling sleepy and he also said he consumed drugs at home. I am just wondering why he did not go home at that time after getting the drugs. Clearly, he was there for other purposes.” (Emphasis added.)

22.  The judge then went on to consider whether the applicant could afford to fund his addiction from legitimate income sources. 

23.  Although the judge accepted that the applicant was a long‑term drug abuser, he concluded that he did not have the financial means to support his addiction and was selling drugs in order to earn the money needed to finance his drug habit.  The applicant had testified that he had a part-time job which earned him about $8,000 to $9,000 a month of which he contributed about $2,000 to $3,000 to his parents.  That would leave the applicant with only $5,000 to $6,000 to use for himself; yet he was claiming that he spent $1,300 weekly on drugs which added up to $5,200 per month for drugs.  On the applicant’s own evidence this would use up all the monies that he had earned and would not leave him with any monies to support himself.  Of this the judge said:

“Given a situation like this, no doubt the defendant would have to cast around for other source of funds to support his habit.”

24.  The judge accepted the applicant’s evidence that he had only paid $1,300 for the drugs which, it was an admitted fact, had an estimated street value of $2,863.  The judge then said that this:

“... shows the defendant has channels of obtaining cheap drugs. If these drugs had been resold, a handsome profit would have been made, more than double the price he paid for the drugs.”

25.  The judge then concluded:

“ Now, on the evidence before the court, I accept that he had drug problems, he needed money to finance his drug habit, his part-time job did not sustain his need and he had to look for other source of funds and he had the means of finding cheaper drugs, and coupled with the fact that he had the drugs in a sitting-out without any intention of going home, and the only reasonable inference to be drawn in these circumstances is that he was there with the drugs to sell to others.

For this reason, I find the prosecution proved the charge beyond all reasonable doubt.”

26.  For the avoidance of doubt I should note that what the judge inferred was that the applicant intended to traffic in all of the drugs, not just part of them, and that none of them were for his own consumption.  Any doubt about this was removed by an exchange between the judge and the applicant’s counsel in the course of the counsel’s mitigation as detailed below. 

The mitigation

27.  In the course his address in mitigation the applicant’s counsel submitted that part of the drugs would have been for the applicant’s own consumption.  That was rejected by the judge who reminded the counsel that in the course of his Reasons for Verdict he had made a finding that the drugs were intended to be resold by the applicant.  When asked by the applicant’s counsel to consider the possibility that some of drugs might be consumed by the applicant the judge replied:

“There’s no room for this possibility.”

28.  In the light of that comment by the judge the applicant’s counsel then simply concluded his submission by saying that the judge should be as lenient as possible in his adoption of a starting point within the sentencing tariff of 3-7 years for quantities of “Ice” up to 10 grammes.  His counsel argued that given the quantities involved the sentence should be at the lower end of the scale.

The Judge’s Reasons for Sentence

29.  In his Reasons for Sentence the judge said that he could see no reason to depart from the tariff and adopted a starting point of 5½ years at being appropriate for this quantity of drugs. As the applicant was convicted after trial there was no basis to reduce that starting point and so that was the sentence he imposed.

The grounds of appeal

30.  In respect of his application for leave to appeal against conviction the applicant relied upon submissions made by him in a document attached to his Form XI.  In this document he complained that the judge failed to take into account the evidence that he gave in his defence.  This related to the evidence of his history of drug abuse and his income as a garage worker. 

31.  In respect of his application for leave to appeal against sentence he was represented by Mr MJ Shah, who also appeared for him in the trial, and Mr David CW Cheung.  These counsel had filed Perfected Grounds of Appeal Against Sentence on his behalf.  The Perfected Grounds of Appeal Against Sentence, in a number of different paragraphs, essentially make only one complaint, namely that the judge erred in refusing to take into account that part of the drugs were for the applicant’s own consumption.  Under this complaint it is submitted that the judge erred: (i) by not recognizing that part of the drugs were for the applicant’s own consumption; (ii) by not making any finding of fact as to the extent of the applicant’s personal consumption, and (iii) by sentencing the applicant on a wrong factual basis.

Discussion

32.  I am concerned at the judge’s reasoning process by which he reached the conclusion that the applicant intended to traffic in all of these dangerous drugs.  That was an inferential finding that was drawn from the following primary facts:

(i) the applicant had drug problems;

(ii) he needed money to finance his drug habit;

(iii) his part-time job did not sustain his needs and he had to look for other sources of funds;

(iv) he had the means of finding cheaper drugs; and

(v) he was in possession of the drugs in a sitting-out area without any intention of going home.

33.  There can be no dispute about (i) and (ii) above. (iii) is more questionable because the amount of the applicant’s income was variable and he did not always give money to his parents.  He was living at home so his daily needs would have been taken care of by them.  However, there can be little doubt that a drug habit of $5,200 per month would have stretched his finances when he was only earning $8,000-$9,000 per month.

34.  The applicant’s ability to access cheaper drugs is an inference from the admitted fact that the estimated “street value” of 7.23 grammes “Ice” would be around HK$2,863 and the evidence of the applicant that he bought the “Ice” for $1,300 and his agreement that he could buy drugs at an undervalue.  But how much of an undervalue will depend upon an acceptance of the applicant’s claim that he only paid $1,300 for the drugs and an acceptance that “street value” equates to what other users would normally pay for the drug and that other users could not normally purchase the drug for anywhere near the price the applicant paid for it. 

35.  Understandably, the judge placed significance on the applicant remaining in the sitting-out area.  One would expect that a drug addict who is suffering from withdrawal symptoms and who has just taken delivery of drugs would want to rush home and consume some of it.  That he did not do so may suggest he had a reason for staying out.  But there is also the fact that the packet of drugs consisted of two plastic bags containing what might be regarded as immediately consumable quantities and one large plastic bag containing the bulk of the drugs.  All three were wrapped together in tissue paper which was then bound together with cellotape.

36.  Unless the applicant was intending to sell the large packet as it was then, in order to traffic in the drugs in that packet, the applicant would have to remove the tissue paper and dispense the contents of the larger packet into smaller packets for resale.  For this he would, presumably, need an electronic scale and a number of plastic bags neither of which items he had with him.  Furthermore, he would be involved in this process in a location which did not possess the total privacy needed for such activity.  None of these matters were addressed by the judge.

37.  It may be that the matters relied on by the judge may, and I put it no higher than that, allow of an inference that the applicant intended to traffic in the two small packets, as put by the prosecutor, but that is not something I have to decide.  Be that as it may, I am, however, satisfied that it is reasonably arguable that they do not allow of the inference that he intended to traffic in all of the drugs as that was either not an inference available on those facts or was not the only reasonable inference.

38.  Having decided to grant leave in respect of conviction I am of the view that the prudent course is to also grant leave in respect of sentence.

Conclusion

39.  For these reasons I allowed the applications and granted leave to the applicant to appeal against both his conviction and his sentence.

[1] It was an admitted fact that this bag, Exhibit P2, contained a total of 6.92 grammes of a solid containing 6.49 grammes of methamphetamine hydrochloride.

[2] In re-examination he said:

   “Actually there’s no need to give them but then once in a while like 2,000, around 2,000.”

[3] In his evidence the applicant testified that the drugs were passed to him at the sitting-out area and that he got to that area around 5 am.