HKSAR v. LO YIU WA

CACC 232/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 232 OF 2012

(ON APPEAL FROM HCCC 63 OF 2012)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court) :

1.  The applicant seeks leave to appeal against his conviction on 24 May 2012 after trial before Deputy High Court Judge Toh, as she was then, and a jury of a count (count 1) of unlawfully trafficking in a dangerous drug, namely 420.16 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and against the sentences of imprisonment imposed upon him for that offence, and two other offences, to a total of 12 years’ imprisonment. One of those offences (count 2) was for unlawfully trafficking in 260.18 grammes of ketamine and the other (count 3) for possession of a dangerous drug, namely 27 mg of methamphetamine in tablet form, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

The counts on the indictment

2.  The applicant was charged jointly with his co-accused, Shiu Kin Wai, with having unlawfully trafficked in the 420.16 grammes of ketamine, the subject of count 1.  However, in the other two counts he was charged alone.  The Particulars of Offence of all three counts alleged that the impugned conduct had occurred at Room 1608, Cheung King House, Cheung Wah Estate, Fanling on 30 September 2011.

THE TRIAL

The prosecution case

3.  There was no dispute at trial that the applicant was the tenant of Room 1608, Cheung King House, Cheung Wah Estate, from which premises, Shiu Kin Wai had emerged sometime after 4 p.m. on the afternoon of 30 September 2011.  Customs officers detained him shortly afterwards on the ground floor of that building and found that a bag that he was carrying contained 11 ziplock bags, 7 of which were contained in  very distinctive purple plastic bags, which were found to contain ketamine.  A twelfth ziplock bag, also containing ketamine, was found on the person of Shiu Kin Wai. Altogether, the 12 bags contained 420.16 grammes of ketamine.

4.  Following the detention of Shiu Kin Wai, Customs officers forced entry into Room 1608, having failed to obtain any response to their knocking on the door and their shouts.  The dangerous drugs the subject of counts 2 and 3, together with electronic scales and packaging material, including ziplock bags, were found contained in bags on some shelving in the sitting room.  Purple bags similar to those found to contain ziplock bags of ketamine in the bag carried by Shiu Kin Wai were found amongst the packaging material.  Some of them contained ziplock bags of ketamine.  The applicant and his wife were found in the bedroom of the premises.

The defence case

5.  The applicant did not give or call evidence.  He relied on answers that he had given in reply to questions of a Customs officer, in particular that, whilst he accepted that for the payment of $2,000 he had permitted “Ah Wai”, Shiu Kin Wai, to store dangerous drugs in his home, he had no knowledge of the presence of the dangerous drugs in the bag carried by Shiu Kin Wai or that found on him at the time of the latter’s detention by Customs officers.  Shiu Kin Wai had come to his premises earlier that afternoon carrying the bag, but he knew nothing of its contents.

Ground of appeal against conviction

6.  Mr Suen Kam Hee submitted on behalf of the applicant that the judge had erred in refusing a submission at the conclusion of the prosecution case and in ruling that there was a case to answer.  It was contended, as it was before the judge, that there was insufficient evidence to link or connect the applicant to the dangerous drugs found in the possession of Shiu Kin Wai.  Further, it was asserted that the judge had directed the jury that the applicant was in possession of the bag carried by Shiu Kin Wai, in which was found the ketamine the subject to count 1.  That direction was in error.

A CONSIDERATION OF THE SUBMISSIONS

7.  The judge did not direct the jury that the applicant was in possession of the bag carried by Shiu Kin Wai.  What the judge said was that (appeal bundle, page 6 P) :

“ The first element to prove is whether the defendant was in possession of the ketamine with Mr Shiu.”

Of that element, she said :

“ What amounts to ‘possession’, members of the jury? Possession does not mean ownership. Here, a person is in possession if he has actual custody; for example, if he had it in his hand or in his pocket, or otherwise within his control. It can also mean that an object may be possessed by more than one person at the same time. If two persons agree to keep a pool of articles in one place and that any of them may go there to take or move some of it as and when they see fit, then all are in control of the article in the sense that I have here described control, and all are in possession of it. That is what is meant by ‘joint possession’.”

8.  Later, the judge went on to direct the jury (appeal bundle, page 7 R) :

“ Mere knowledge of the presence of a drug in the hands of another is not enough. The prosecution has to prove to your satisfaction so that you are sure that the defendant was in joint possession of the ketamine with Mr Shiu, both in the flat and also in the bag, and that the defendant knew that the substance in the bag was a dangerous drug that he had authority to exercise control over it if and when he pleases.”

9.  Of the applicant’s assertions in his statement to a Customs officer, that he did not even know what was contained in the bag carried by Shiu Kin Wai, the judge directed the jury (appeal bundle, page 9 R) :

“ So if you think what he said is true, or may be true, then you have to acquit him.”

10.  In ruling that the applicant had a case to answer, the judge acknowledged that the prosecution case against the applicant depended on circumstantial evidence, not direct evidence.  Of the weight of that evidence, she said (appeal bundle, page 36 I) :

“ … he is the legal tenant of the flat. When the police arrived, dangerous drugs, the ketamine, were found inside the flat, in the living room; packaging equipment was found, the scales, the resealable plastic bags; the defendant’s palm print was found on the scales and, most particularly, was also the fact that the plastic carrier bags, purple in colour, a bunch of them, were found inside the sitting room which matched the purple carrier bag which contained the drugs found inside the bag that Shiu Kin-wai was carrying when he was found on the ground floor of the building to Room 1608. ….Shiu had been seen leaving the premises shortly before his arrest….”

11.  The test to be applied in respect of an application at the conclusion of the prosecution case that there is no case to answer is that articulated in the judgment of this Court delivered by Kempster JA in the Attorney-General v Li Fook Shiu, Ronald [1990] 1 HKC 1 at 13 B-C, namely :

“ could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that the jury could, may or might so be satisfied, he will rule against the submission or application.”

12.  We are satisfied that the judge’s ruling that there was a case to answer was entirely correct.  The circumstantial evidence against the applicant was powerful.  It was the applicant’s own case that for the payment of money he had permitted Shiu Kin Wai to store drugs at his home.  The fact that Shiu Kin Wai had left the applicant’s home carrying the bag in which was found the ketamine the subject of count 1 very shortly before his arrest and that the ketamine was packaged inside ziplock bags inside very distinctive purple plastic bags similar to the purple plastic bags found inside the applicant’s home was highly material evidence from which a jury “could, may or might” properly draw the inference that the applicant was in joint possession of the ketamine in which he and Shiu Kin Wai were unlawfully trafficking.

13.  In her summing up, the judge directed the jury appropriately in respect of the drawing of inferences.  Of that, she said (appeal bundle, page 12 B-E) :

“ You are entitled to infer the existence of other facts, but you may only do so if that inference is the only reasonable inference to draw from proved facts. So if, from a set of facts which you find proved, there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference.”

14.  The judge went on to set out the inferences that the prosecution invited the jury to draw from the proved facts, namely that (appeal bundle, page 12 F-I) :

“ the defendant knew of the ketamine inside the bag carried by Mr Shiu and he, together with Mr Shiu, was in joint possession of the ketamine, and the ketamine had been taken from Room 1608 because of the similar packaging and the fact that Mr Shiu had just left Room 1608 when he was arrested.”

15.  Of the defence case, the judge said (appeal bundle, page 13 J-L) :

“ But it seems that the defence is saying that, from P 57, the defendant seems to be saying that he did not know what was inside the bag. He was asserting that what was inside the bag did not come from the drugs inside the flat. So if that is the case, or may be the case, then it must be acquitted.”

16.  P 57 was the exhibit number of the Customs officer’s notebook in which a record was made of the applicant’s statements in answer to questions.  In answer to the question of when it was that Shiu Kin Wai had put the dangerous drugs in his home, the applicant said :

“ he came up sometime between one o’clock and two o’clock today. Then, he was in the sitting room on his own till around four o’clock in the afternoon, when he went away. So my wife and I watched TV in the room.”

When asked what he knew about the dangerous drugs found in the possession of Shiu Kin Wai, the applicant said simply, “I don’t know”.  Later, when shown the bag carried by Shiu Kin Wai, in which the ketamine had been found, the applicant said :

“ I only recognised the black coloured bag, which belongs to Ah Wai. I have no idea what is inside. He was already carrying this black coloured bag when he arrived today.”

The applicant went on to say that he did not notice and did not know what was in the bag when Shiu Kin Wai arrived at his home that day.

17.  Given that the applicant’s answers to the officer contained both incriminating parts and excuses or explanations, the judge had given the jury the standard direction as to how they might approach the matter.  Of the latter consideration, the judge said (appeal bundle, page 10-S to page 11-B) :

“ You may feel that there is less weight to be attached to his excuses or explanations for they have not been made on oath, have not been repeated on oath in the witness box, and have not been tested by cross-examination.”

Conclusion

18.  In the result, we are satisfied that, having been properly directed by the judge in her summing up, there was ample evidence upon which the jury was entitled to find the applicant guilty of count 1.  Accordingly, the application for leave to appeal against conviction is refused.

SENTENCE

Reasons for Sentence

19.  In sentencing the applicant, the judge noted that the dangerous drug in which the applicant unlawfully trafficked in counts 1 and 2 was the same drug, namely ketamine.  She noted that in total the two counts concerned 680.34 grammes of ketamine.  She said that, having regard to the guidelines laid down in the judgment of this Court in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, unlawful trafficking in that amount of ketamine, “would merit, under those guidelines, a sentence of 12 to 14 years’ imprisonment.”

20.  The judge stated that she took a starting point of 8 years’ imprisonment for count 2 and 18 months’ imprisonment for count 3.  Affording the applicant a discount of one third from the starting point for his pleas of guilty, the judge imposed a sentence of 5 years and 4 months’ imprisonment for count 2 and 12 months’ imprisonment for count 3.  The judge imposed a sentence of 10 years’ imprisonment for count 1.

21.  Then, having regard to the principle of totality, the judge ordered that 2 years of the sentence of imprisonment imposed in respect of count 2 was to be served consecutively to the sentence of 10 years’ imprisonment imposed in respect of count 1, whilst the sentence of imprisonment imposed in respect of count 3 was ordered to be served concurrently with the other sentences.  Accordingly, in total the sentence imposed upon the applicant was 12 years’ imprisonment.

Grounds of appeal against sentence

22.  The single ground of appeal against sentence asserts that the total sentence of 12 years’ imprisonment imposed upon the applicant is manifestly excessive.  In his written submissions, Mr Suen Kam Hee submits that in the circumstances of the case, in which the offences intimately connected were the offences for intimately connected by time and place, the judge was correct to have regard to the overall quantity of ketamine in counts 1 and 2.  However, he invited the court to note that the sentencing guidelines in Hii Siew Cheng provide that unlawful trafficking in 600 to 1,000 grammes of ketamine falls within the range of sentence of 12 to 14 years’ imprisonment.  On an arithmetic approach to the guidelines it is submitted that the appropriate sentence for unlawfully trafficking in 680.34 grammes of ketamine should be slightly over 12 years’ imprisonment.  However, he submitted that since the applicant pleaded guilty to count 2, namely in respect of unlawful trafficking in 260.18 grammes of ketamine the applicant was entitled to a pro rata discount in the actual sentence imposed upon him.  That discount, he submitted, amounted to 18 months’ imprisonment.

The respondent’s submissions

23.  Mr Eddie Sean, conceded on behalf of the respondent, that there was merit in principle in the submissions made by the applicant.  However, he submitted that on an arithmetic approach to sentence the appropriate additional discount of sentence, if the court were minded to interfere with sentence, ought to be 14 months’ imprisonment.

A CONSIDERATION OF THE SUBMISSIONS

24.  No issue was taken with the individual sentences imposed on the applicant in respect of the three counts.  We are satisfied that the individual sentences of imprisonment were appropriate.  It is to be noted that having stated that the aggregate amount of ketamine concerned in counts 1 and 2 merited a sentence in the range of 12 to 14 years’ imprisonment in determining the appropriate totality of sentence the judge did not advert to the fact that range of sentence was appropriate after trial, whereas the applicant was being sentenced in respect of unlawful trafficking in dangerous drugs which, to the extent of 260.18 grammes of ketamine, he had pleaded guilty.  Clearly, that was relevant to the determination of the appropriate overall sentence.

25.  We are satisfied that there is merit in the submissions made on behalf of the applicant.  In imposing a total sentence of 12 years’ imprisonment on the applicant the judge was imposing a sentence that fell within the appropriate range of sentence for a person convicted after trial in unlawfully trafficking in all of the ketamine the subject of the counts. Insufficient consideration was afforded to the fact of the applicant’s plea of guilty to count 2.  We do not think that it is necessary or appropriate to take an arithmetic or calculator approach to determining the appropriate totality of sentence.  Having regard to all the circumstances, in our judgment the appropriate totality of sentence is 10 years and 9 months’ imprisonment. 

Conclusion

26.  To achieve that result, we quash the order that 2 years’ imprisonment of the sentence imposed in respect of count 2 be served consecutively to the sentence imposed in respect of count 1.  In its place, we order that 9 months of the sentence imposed in respect of count 2 be served consecutively to the sentence imposed in respect of count 1.  Accordingly, we grant leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal.