HKSAR v. CHUI YUET-KWAN, ADY

CACC 404/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2014

(ON APPEAL FROM DCCC NO. 445 OF 2014)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  By notice filed with the Court on 31 July 2015, the applicant, who appeared in person, renewed her application for leave to appeal against her conviction after trial on 19 November 2014 by District Judge Dufton of a charge (Charge 1) of trafficking unlawfully in 10.08 grammes of methamphetamine hydrochloride (Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Her application for leave to appeal against that conviction was refused by McWalters JA on 22 July 2015.[1] We refused her application and said that we would give our reasons for so doing in due course. That, we do now.

2.  On arraignment the applicant pleaded guilty, to a charge of possession of dangerous drugs, namely four plastic bags containing traces of ketamine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.  At the conclusion of the trial, the judge sentenced the applicant to 6 years and 9 months’ imprisonment in respect of Charge 1 and 2 months’ imprisonment in respect of Charge 2, which sentences he ordered to be served concurrently

3.  Having filed Form XI [2] with the Court on 24 November 2014, giving notice of her application for leave to appeal against conviction and sentence, on 21 April 2015, the applicant gave notice that she abandoned her application for leave to appeal against sentence, which was dismissed that day. 

The prosecution case

4.  It was the prosecution case that at 15:38 hours in the afternoon of 20 February 2014 police officers intercepted the applicant outside an Amusement Games Centre at 2, Marsh Road, Wanchai.  She was found to be in possession of two re-sealable plastic bags, which were found to contain 10.08 grammes of Ice (Charge 1) and one other empty re-sealable plastic bag containing eleven smaller empty re-sealable plastic bags.  The ‘street value’ of the Ice was $4,621.  Having been arrested and cautioned, the applicant said that the Ice was for her own consumption.  Also, she was found to be in possession of cash in various currencies, including $526.40, Taiwan dollars $300, RMB10, $10 Macau dollars, and two mobile telephones.

5.  In a search of the applicant’s home conducted in the evening of 20 February 2014 four re-sealable plastic bags were seized, each of which contained traces of ketamine (Charge 2).

6.  In subsequent video recorded interviews the applicant said under caution, inter alia, that she had been taking dangerous drugs for three months[3].  Further, she contended that she had bought the Ice for self consumption only.[4]  She asserted that she consumed Ice two or three times a week and that the Ice would be sufficient for half a month’s consumption.

7.  Dr Tang Wai Kwong, a professor in the Department of Psychiatry in the Chinese University of Hong Kong, gave evidence as an expert in respect of the patterns of consumption of Ice by its abusers.  In the absence of the requisite data of the pattern of consumption of Ice by abusers in Hong Kong he gave his opinion on the basis of a study conducted in the Mainland.  It was the conclusion of the study that the daily rate of abuse would range from 0.1 to 2 grammes, with an average daily consumption of 0.13 grammes.  It was his opinion that a person who had abused Ice for three months, two to three times per week, was a ‘light user’.  On the basis of the average daily consumption of 0.13 grammes, he said that the quantity of Ice found in the possession of the applicant was sufficient for consumption over a period of 77½ days.  The Ice would last longer if consumed by a ‘light user’, two to three times per week.

The Defence case

8.  The applicant testified in the defence case.  She said that she earned $8,000 per month, and that after meeting her expenses each month she had $5,000 to spend.  She had abused Ice since the age of 16 years and, having ceased to use it when she was 21, she had resumed using it two years earlier.  At the time of her arrest she consumed Ice about two to three times a week.  Also, she consumed ketamine four to five times per week.  She had equipment for the consumption of Ice in her premises at the time it was searched, but the police had not found it, concealed as it was in the toilet.

9.  She purchased the Ice the subject of Charge 1 from a person she knew as ‘Ah Fai’ at around 14:45 hours on 20 February 2014.  Having noticed she was followed by ‘Ah Fai’ she had entered the Amusement Games Centre, so as not to lead him back to her home.  As she left the Centre, she was intercepted by police officers.  The Ice that she had bought on this occasion would last her for about two months.  She was possessed of the empty re-sealable plastic bags in her handbag so that, if she wished, she could store miscellaneous personal items.

Reasons for Verdict

10.  In his reasons for verdict, the judge rejected the applicant’s evidence which he determined to be incredible.  He said:[5]

“I do not find credible the defendant’s evidence as to her abuse of ice. The defendant’s evidence that she first started taking ice when she was 16 some 21 years ago; stopped when she was 21 and resumed again after the death of her father about 2 years ago is inconsistent with what she told the police in two of the video interviews.”

11.  He noted that in those out-of-court statements, she had said, “she had taken ice for three months (see counters 125-126 and 143-146)”.  Further, that she repeated that assertion, adding that “…she took ice two or three times per week (see counters 29-34).” [6]

12.  Next, the judge determined that not only did he disbelieve her as to the period over which she had abused Ice but also he disbelieved her in respect of the length of time that the Ice would last her:[7]

“I do not find credible the defendant’s evidence in cross-examination that the ice would have lasted her for two months. This again is inconsistent with what the defendant told the police in the third video interview that the drugs would last around half to one month (see exhibit P8, counters 35-36). The defendant again explained that she was scared when she told this to the police.

I reject the defendant’s explanations for the discrepancies in her evidence and what she told the police about how long she had been taking drugs and how long the drugs would have lasted her.  Whilst someone may well be scared on being arrested the fact remains the defendant told the police not once but twice, in two separate video interviews, that she had only been taking ice for three months.”

13.  Then, notwithstanding that her evidence was consistent with her out-of-court statements, the judge rejected her explanation for her possession at the time of her arrest of 12 re-sealable plastic bags:[8]

“I do not find this explanation credible. I do not find credible the defendant would carry with her for one month empty plastic bags.”

14.  Next, the judge rejected the appellant’s evidence that she had bought the dangerous drugs from the person she knew as ‘Ah Fai’, who had followed her to the Amusement Games Centre:[9]

“I find inherently improbable that a trafficker in drugs would remain with the buyer thereby increasing the risk of him being arrested if the buyer was stopped by the police.”

15.  Then, the judge said that he rejected her evidence as to movements:

“I find inherently improbable that having just bought a relatively large quantity of ice the defendant would go to an amusement game centre to play video games and then go shopping and not go home.

I reject the defendant’s evidence in court and in the video interviews that she bought ice from Ah Fai for her own consumption.”

16.  In the result, having regard to the evidence of Dr Tang, the judge concluded:[10]

“Having carefully considered all the evidence and taking into account that:

(i) the defendant was stopped on the street;

(ii) found in possession of 10.08 grammes of ice;

(iii) which quantity would last for 77.5 days for an average abuser and longer for a lighter user thereby making this a considerable quantity for a lighter user or an average user to possess; and

(iv) the defendant was also found in possession of twelve empty plastic bags suitable for further packaging the ice;

   I find I am satisfied so I am sure the only inference to draw is that the defendant possessed the ice for the purpose of trafficking.  I am satisfied the defendant was dealing with the ice and was not possessing the ice for the purpose of enabling her, at some future time, to consume.”

Grounds of appeal against conviction

17.  In Form XIII, filed with the Court on 30 July 2015, by which the applicant gave notice of her application after refusal by the single judge the applicant did not state any reasons in addition to those set out in her original notice.

18.  In a letter to the court dated 4 January 2016, the applicant said:

“My grounds of appeal are that the solicitors firm that represented me in criminal case No. 404 2014 had given me misleading instruction, causing me to enter a plea of not guilty in the criminal case in the District Court.”

19.  Of those that had represented her in the appeal proceedings, she said:

“I clearly told Mr Leung, the clerk of the solicitor’s firm, the misleading instructions given to me by the solicitors firm that represented me in the trial.”

20.  However, she went on to complain that neither her solicitors nor her barrister had explained the procedure of the appeal to her, “nor was I explained any content of the appeal bundle or any grounds of appeal.”

21.  At the hearing, the Court explained to the applicant her rights of legal professional privilege, informing her that if she wished she could waive those rights and disclose what had passed between her and her legal representatives.  But, if she did waive those rights the Court might direct that enquiries be made of her lawyers as to what passed between them.  In the event, the applicant said that she had nothing to add to her complaint about her legal representatives.  Similarly, she had nothing to add to the grounds of appeal against conviction filed on her behalf.

22.  In the Perfected Grounds of Appeal settled by counsel, filed with the Court on 23 April 2015 and argued by him in front of the single judge, McWalters JA, it was submitted that:

“GROUND ONE

The Learned Judge erred in finding that there is sufficient evidence to establish the only irresistible inference that the Applicant possessed the ICE was for the purpose of trafficking.

GROUND TWO

The learned judge erred in rejecting the Defence Case that the Applicant possessed the ice was for her own consumption.

GROUND THREE

Because of the above matters, the conviction for Charge 1 is unsafe and unsatisfactory.”

23.  In his Reasons for Judgment, refusing the applicant leave to appeal against conviction on Charge 1, McWalters JA said of the submissions advanced in support of ground 2:[11]

“…it is submitted that the applicant gave a consistent account from the moment of her arrest until the moment she gave evidence in court for the reason of her possession of the “ice”, namely for her own consumption of it. This consistency of account, it is submitted, was something to which the judge should have had regard in considering whether her testimony was credible. It is said that the judge failed to give himself a direction on consistency. When the consistency of her account is taken together with the fact that there was no direct evidence of trafficking and that the circumstantial evidence was weak then the judge should have concluded that the applicant’s claim that the “ice” was for her own consumption may be true.”

24.  In rejecting that ground of appeal, the judge said:[12]

“The submission that he should have given himself a consistency direction is, in my view, wrong.  In the Huang Xiang Rong case the Court of Appeal was not saying that a consistency direction had to be given in every case, merely that in certain circumstances it may be appropriate.  Furthermore, the court was addressing the situation of a judge directing a jury.  What directions a professional judge sitting alone as a tribunal of fact has to give himself is quite another matter.  I am not persuaded that it is reasonably arguable that in this case the judge was required to direct himself that the assertion the applicant made in her evidence that the “ice” was for her own consumption, was an assertion she had consistently made from the time of her arrest.  That the applicant had been consistent in this claim could not have escaped the judge’s attention. Indeed in his analysis of the applicant’s evidence the judge specifically looked for consistency and inconsistency in determining the credibility of her claims.

It can detect no error in either the judge’s analysis of the applicant’s testimony or his reasoning in concluding that it was not credible.  I do not find the second ground of appeal reasonably arguable.”

25.  Having noted that following the rejection of the applicant’s evidence the prosecution case stood on its own uncontradicted, McWalters JA went on to conclude:[13]

“The primary facts on which the judge relied to draw the inference of trafficking have already been set out.  They amount to a person, not proven to be an “ice” abuser, being found on the street in possession of 10.08 grammes of “ice” and twelve empty resealable plastic bags suitable for the re-packaging and selling of the “ice”.

I have no doubt that these primary facts do allow of an inference of trafficking.  I am not persuaded that it is reasonably arguable that no reasonable tribunal of fact could draw an inference of trafficking from these primary facts.  Nor can I detect any error by the judge in his reasoning by which he reaches the conclusion that he should draw the inference of trafficking.”

The submissions of the respondent

26.  Mr Andrew Li submitted on behalf of the respondent that the issue at trial and in the application for leave to appeal against conviction advanced before the single judge was whether or not the applicant was possessed of the Ice for purposes of unlawful trafficking or for her own consumption.  In the context of her complaint now of the incompetence of those representing her at her trial he submits it is “inconceivable” that, if those complaints were made to those representing her in advance or at the application before the single judge, they had not explored or advanced the matter further.  Of the applicant’s complaints about those representing her in the application before the single judge, Mr Li invited the Court to note that the applicant was present, and that interpretation would have been provided to her, during the exchanges between the Bench and Bar.  If she had given instructions to pursue an appeal on the basis of the incompetence of those representing her trial, it would have been obvious to her during the hearing that was not basis on which the application was being advanced.  Yet, no complaint was made to the judge.

27.  He submitted that in the absence of any evidence, there was nothing to support the bare assertions of the applicant.  In those circumstances, he invited the Court to refuse the renewed application for leave to appeal against conviction.  He suggested that if the Court was to deal with the application in that manner, it might wish to consider the use of its power to order ‘loss of time’, pursuant to section 83W(1) of the Criminal Procedure Ordinance.

A consideration of the submissions

28.  It is clear from the judge’s succinct description of the evidence, and the transcript of the applicant’s evidence, that there was a single issue contested at trial, namely whether or not the prosecution had proved that the applicant was possessed of the Ice for the purposes of unlawful trafficking, in face of the defence case that she possessed it for her self-consumption only.  When asked the final question in evidence-in-chief as to the purpose of her having bought the Ice, as she had testified, the applicant said, “for self consumption.” [14]  Consistent with that defence case, in cross-examination, the applicant denied that she had purchased the Ice, “not to smoke yourself but to resell”.[15]  Similarly, she denied that she possessed the empty re-sealable plastic bags in order to resell Ice on the streets.[16]  Finally, she denied that she bought such a large quantity of Ice because it was for resale.[17]

29.  It is equally clear that the application for leave to appeal before the single judge was advanced broadly on the basis that the judge had erred in rejecting that defence case.

30.  The applicant’s suggestions that she was misled by those representing her at trial to plead not guilty were bare assertions, wholly unsupported by any evidence.  She provided evidence herself to support the case that she possessed the Ice for self-consumption only.  She denied the prosecution suggestions to the contrary.  Clearly, she knew and supported the defence case on the very simple nature of the matter in issue.  Similarly, it beggars belief that she was unaware that her application for leave to appeal against conviction was conducted on the basis that the judge had erred in rejecting the defence as advanced at trial and did not know that the allegations which she makes now were not advanced against those representing her at her trial.  The applicant’s complaints against her legal representatives are wholly implausible.

31.  We were satisfied that, with respect, the single judge was correct in refusing the application for leave to appeal on the grounds advanced before him.

Conclusion

32.  There is no merit in the applicant’s renewed application for leave to appeal against conviction which was refused.

Loss of time

33.  In his judgment, McWalters JA, having refused the application for leave to appeal, stated in the final paragraph:[18]

“I informed the applicant of her right to renew her application before the Court of Appeal and I also informed her of the existence of the power contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221. I explained the nature of this power to her and of the possibility that should she renew her application before the Court of Appeal that court may exercise this power against her.”

34.  Form XIII, by which the applicant renewed her application for leave to appeal against conviction, states that: “The order of the Single Judge was handed to the applicant on 22 July 2015.”  Also, immediately above the appellant’s signature it states:

“A renewal to the Court after refusal by the Judge may well result in a direction for the loss of time, if the Court comes to the conclusion that there was no justification for the renewal.”

35.  When asked if she had anything to say as to why this Court should not exercise its powers pursuant to section 83W(1) of Cap. 221, the applicant said that she had nothing to say.

36.  There is no merit in the grounds of appeal against conviction advanced before the single judge or in the complaints made by the applicant about her legal representative, which have not been supported at all today.  They are wholly implausible and groundless.

37.  In all the circumstances, we were satisfied that it is appropriate, and we so ordered, that two months of the time during which the applicant has been in custody pending determination of her appeal shall not be reckoned as part of the term of the sentences to which she is for the time being subject.

[1] HKSAR v Chui Yuet Kwan, Ady; unreported, 24 July 2015.

[2] Criminal Appeal Rules, Cap 221A.

[3] Appeal Bundle; page 47 counter #s 125 - 126; page 76 counter #s 31 - 32.

[4] Appeal Bundle; page 77 counter #s 41 - 42.

[5] Reasons for Verdict, paragraph 23.

[6] Reasons for Verdict, paragraph 24.

[7] Reasons for Verdict, paragraphs 27-8.

[8] Reasons for Verdict, paragraph 29.

[9] Reasons for Verdict, paragraphs 31-2.

[10] Reasons for Verdict, paragraph 46.

[11] HKSAR v Chui Yuet Kwan, Ady,paragraph 31.

[12] HKSAR v Chui Yuet Kwan, Ady,paragraphs 36-7.

[13] HKSAR v Chui Yuet Kwan, Ady, paragraphs 38-9.

[14] Appeal Bundle, page 108 B.

[15] Appeal Bundle, page 110 A-B.

[16] Appeal Bundle, pages 114 P; 120 L-M.

[17] Appeal Bundle, page 124 P-Q.

[18] HKSAR v Chui Yuet Kwan, Ady, paragraph 41.