HKSAR v. POSSO VERGARA CRISTHIAN ENRIQUE

CACC 538/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 538 OF 2011

(on appeal from HCCC 252 of 2011)

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BETWEEN

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DECISION

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1.  This is the Applicant’s 4^th application for bail pending appeal.

2.  He had been charged with one charge of trafficking in dangerous drugs viz 94.36g of a powder containing 35.36g of cocaine, 26.55g of a solid containing 15.75g of cocaine, 46 tablets containing 4.89g of ketamine and 1.18g of cannabis in herbal form. 

Background

3.  The drugs were found inside a locked safe in a Wanchai flat of which the Applicant was the tenant. The Applicant had admitted the safe was his.  The police unlocked the safe with keys seized from the Applicant and after he told them the combination number. There were also one electronic weighing apparatus and a number of unused resealable plastic bags inside the safe.  The cocaine mixture was valued at more than $91,000. This was all admitted at trial.  

4.  The Applicant said at a video-recorded interview, at which a lawyer was present, that the drugs were for his own consumption.  At trial the Applicant admitted that he had said that, but said that was false.  He said a policeman (PW2) had told him that if he said that, he would be released on bail and would face a lesser charge of possession only. 

5.  The Applicant’s case at trial was that he had no idea what was in the safe at all, and that the drugs must have been planted there by someone who had access to the flat and his safe.  As for access to the building, he said he had told a Columbian friend Paula the access code.  As for access to the flat, he said he did not know where his wife had put the keys to the flat after she left Hong Kong 2 weeks previously.  As for access to the safe, he said his wife had bought it to keep her jewellery, and the combination number had been written on a slip of paper attached to the safe.  

6.  The Applicant called a witness called Erfan whom he met on remand.  Erfan said that on the evening in question he saw Paula pass a key to his friend Ahmed Sani Salman also known as “Michael” (who Erfan claimed to be a drug dealer) and that “Michael” then went into the building where the Applicant’s flat was.   

7.  On 13 December 2011 a jury found the Applicant guilty as charged and he was sentenced by Line J to a term of imprisonment of 8 years. 

8.  The Applicant has applied for leave to appeal against conviction. 

Previous applications for bail pending appeal

9.  The Applicant first applied for bail pending appeal before Hartmann JA on 30 April 2012.  It was refused for reasons given in the written Ruling. 

10.  On 1 June 2012 the Applicant made a 2^nd application for bail pending appeal which was again refused by Hartmann JA the same day.  It is noted that one of the points the Applicant made before Hartmann JA was that he asserted that the search of the flat was unlawful as there was no search warrant.  However it was ascertained that there was in fact a search warrant which was in the bundle and, as the judge explained in his Ruling, in any event it is not always necessary for a search to be conducted on the basis of an already issued search warrant (para. 5).

11.  On 11 January 2013 the Applicant made a 3^rd application for bail.  Cheung JA refused the application as there was no change of circumstances since the last hearing before Hartmann JA and in any event the Applicant had not shown that the grounds of appeal were so strong that justice required bail to be granted pending appeal. 

The present application

12.  On 18 March 2013 the Applicant issued a fresh application for bail pending appeal.  In his affirmations supporting this new application, the Applicant said:

(1)     there was a breach of Article 29 of the Basic Law when the police searched his flat;

(2)     there was only one “scale” inside the safe, so the trial judge was in error when he used the word “scales” in his summing up to the jury;

(3)     his trial counsel had failed to represent him properly;

(4)     there was a mistake in the calculation of the street value of the cocaine in the Admitted Facts as the weight of the mixture was taken and not the weight of the drug in its pure form;

(5)     he has been imprisoned for a substantial length of time and he does not know when his appeal will be heard.

The Applicant has also asked that some affirmations be adduced as fresh evidence on appeal.

Discussion

13.  The court has an unfettered discretion in deciding whether to grant bail pending appeal.  But it is usually only granted where it appears prima facie that the appeal is likely to be successful. 

14.  Bail pending appeal may also be granted if there is a risk that the sentence will have been served by the time the appeal is heard.  

15.  Dealing with the last point first, the Applicant’s earliest date of discharge is July 2014, some 15 months away, but the appeal will be heard in less than 3 months time.  Relatively speaking, the Applicant will not have long to wait for the appeal to be heard.    

16.  Coming back to the substantive points, Article 29 is the provision which provides that the homes of Hong Kong residents shall be inviolable and that arbitrary or unlawful search of a resident’s home shall be prohibited.  In other words, this is a re-working of the “no search warrant” argument that the Applicant had already run before Hartmann JA.  As noted earlier, Hartmann JA had already considered the point and had ascertained that there was in fact a search warrant, and in any event the Applicant’s trial counsel had decided that no point should be taken regarding the search even though the search warrant had not been produced at trial. 

17.  As for the trial judge’s use of the word “scales”, in my view that does not connote that there was more than one weighing apparatus in the safe.  The word “scales” is regularly used in English to denote one apparatus, as traditionally two pans would be used to weigh an object.  In any event the jury had been shown photographs of the contents of the safe so they would have seen for themselves that only one weighing apparatus was found. 

18.  The other mistake of fact alleged by the Applicant this morning is that the trial judge said during his summing-up that the Applicant had access to legal advice at Police Headquarters after the alleged inducement.  The Applicant takes issue with that statement as he says although the lawyer was present, there was no private conversation with her.  In my view that does not render the trial judge’s statement mistaken and there was no evidence that the Applicant had asked to speak to the lawyer in private.       

19.  As for the Applicant’s complaints regarding his trial counsel, this had already been considered by Hartmann JA at the 2^nd application for bail pending appeal.  It is well-established that a renewed application for bail is not a proper channel for putting forward submissions which would have been but were not put forward at an earlier hearing, or to put forward the same submissions more persuasively (R v Tam Chung Shing [1988] 2 HKLRD 214).

20.  As for the calculation of the street value of the cocaine, it seems to me at this stage of the proceedings that it is reasonable to assess the value of the drug as it would have been sold on the street, in other words in a mixture, rather than on a notional separation of the pure drug from the mixture.

21.  Finally this is not the proper venue for discussion of the contents of the bundle to be used on appeal.  Lunn JA had on 31 October 2012 already directed that any applications in this respect which the Applicant wished to make should be addressed to the division hearing the appeal rather than to a single judge.  I can see the sense of Mr Cheng’s submissions on behalf of the Respondent that it may be more appropriate if an application of that nature were to be made say, a few weeks before the hearing of the appeal rather than at the hearing of the appeal itself.  Be that as it may, it is not in any event a matter for a single judge hearing an application for bail pending appeal.

22.  It will be seen from what I have said that having considered the Applicant’s submissions, I am not persuaded that he has shown prima facie that his appeal is likely to be successful or that the sentence would have been served before the appeal is heard.  The application is accordingly dismissed.