R. v. CHAN HON KAM

IN THE COURT OF APPEAL

1994, No. 485
(Criminal)

___________

_________________

J U D G M E N T

_________________

Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant faced three charges in the District Court, brought under the Dangerous Drugs Ordinance. He pleaded guilty to the 3rd charge, which was possession of apparatus fit and intended for the inhalation of a dangerous drug. The offences were committed in October 1989, before the Dangerous Drugs Ordinance was amended by Ordinance 52 of 1992 which removed from the statute book the crime of possession for the purpose of unlawful trafficking: the old section 7(1) of the Dangerous Drugs Ordinance.

3. The charges on which the applicant was found guilty after trial before Deputy Judge Z.E. Li were to this effect: charge 1, possession of a dangerous drug for the purpose of unlawful trafficking in that the applicant on 18 October 1989 outside "Sun Lung Chuen" Restaurant at Block 25, Sau Mau Ping Estate, Kowloon had in his possession for such purpose 69.31 grammes of a mixture containing 2.91 grammes of salts of esters of morphine.

4. Charge 2 alleged that the applicant, on the same day, at room 911, Block 19, Sau Mau Ping Estate had in his possession for the purpose of unlawful trafficking 771.16 grammes of a mixture containing 33.05 grammes of salts of esters of morphine.

5. As can be seen, the heroin was in a highly diluted form. It was No. 3 heroin.

The admitted facts

6. At the trial, all the primary facts on the prosecution case were established by formal admission. In essence the facts were these:

(1) At 9.10pm on 18 October 1989 the applicant was stopped by the police outside the Sun Lung Chuen Restaurant, at Block 25, Sau Mau Ping Estate. He had with him a young boy (aged 4-5 years).

(2) The applicant was holding a plastic bag. When this was searched, it was found to contain 20 packets of the No. 3 heroin which constituted the amount in the first charge.

(3) When the applicant was arrested and cautioned he said to the police: "Ah Sir, since I am incriminated anyway, however, the dangerous drugs has nothing to do with the kid. Can you withhold from taking him to the police station? If yes, I can take you up to my 'dau' which is at Room 911, Block 20, Sau Mau Ping."

(4) When room 911 was subsequently searched, the police found the quantity of No. 3 heroin, in a total of 163 packets, which constituted the amount alleged in charge 2.

(5) The police also found various objects fit and intended for the inhalation of heroin. This led to charge 3 to which the applicant pleaded guilty.

(6) The weight of the mixtures in the 183 packets and the purity of the drugs varied greatly.

7. Having regard to the number of packets, the total weight of the active ingredient involved and the circumstances under which the appicant came to be arrested - carrying 20 packets in a bag - the inference lthat he had the drugs for the purpose of unlawful trafficking would have been irresistible, if there were no explanation forthcoming from him.

Defence case

8. However, the applicant gave evidence at the trial to this effect: he was a drug addict and had started abusing drugs from about 1983. To sustain his habit, he needed to consume about four packets of No. 3 heroin per day. For this purpose he was spending about $200 a day on heroin. His home was in Lam Tin and he was working at that time as a contractor in a handbag factory, earning about $10,000 per month. Sometimes he worked at night. Room 911, Block 19, Sau Mau Ping Estate was the home of his uncle who was suffering from mental illness; his uncle was divorced from his aunt. His family had adopted their son: the little boy found with him on the day of his arrest. As regards the 183 packets of No. 3 heroin, the subject-matter of the two charges, he had bought the drugs two days before from a dealer, having paid $10,000 cash at a 20% discount for the bulk purchase. The dealer had told him that it was the last lot: No. 3 heroin was no longer available in the market and if he did not purchase such a large quantity on that occasion he might have had to wait for one to two months, and even then he might not be able to get it. The quantity he bought was entirely for his own consumption and would have lasted him about two months.

9. As to why the drugs were kept in his uncle's place, his explanation was this: In 1985 he was sentenced to a period of detention in a drug addiction treatment centre; when he was discharged, he did not want his family to know that he had gone back to drugs; moreover, since he had a criminal record for possessing dangerous drugs, he was afraid that if he should be stopped in the street by the police and his identity card was checked the police would take him home to search for drugs, hence, he kept the quantity in his uncle's place. He used to go to his uncle's place about 2-3 times a week. On 18 October 1989 he had gone to his uncle's place at about 6-7pm and had taken 20 small packets from the bulk. This would have lasted him four to five days. He was about to take the young boy to have a meal at the restaurant, prior to going to work, when he was arrested outside the restaurant at about 9.10pm. Whenever he went to his uncle's place he would take away 10-20 packets.

The Judge's evaluation

10. Clearly, the applicant's story needed careful evaluation. It was not so inherently improbable as would have justified a court dismissing it out of hand. In rejecting the applicant's explanation the judge gave three reasons:

(1) The applicant's earning power. On the applicant's story, he would have spent about $6,000 per month on drugs, leaving him $4,000 a month to cover his living expenses.

(2) Bulk purchase: the 183 packets, apart from being a large quantity, varied in weight and in purity.

(3) The time the applicant spent at room 911 prior to his arrest.

11. It would be convenient to deal with (3) first. The applicant had testified to the effect that he went to room 911 between 6-7pm. He was arrested some two to three hours later, outside the restaurant, not far from Block 19 Sau Mau Ping Estate where room 911 was. The judge had himself questioned the applicant as to what he did in room 911 during such a lengthy period of time. The applicant was unable to give a satisfactory explanation, beyond saying that he had "intended to take the boy"; the judge rightly regarded this as an unsatisfactory answer. Plainly, however, this point alone would not have been enough for the judge wholly to reject his explanation.

12. This brings us to points (1) and (2). These plainly went to the heart of the matter which the judge had to decide: whether the 183 packets were for the purpose of trafficking. If, on the evidence, the applicant could not be believed with regard to his financial resources, the inference that he was profiting from drug trafficking became proportionately stronger. Likewise, if his story concerning bulk purchase was wholly inconsistent with keeping the drugs for his own consumption, the inference of possession for the purpose of trafficking would have been almost irresistible. Was the judge correct in his analysis of these two points?

Living expenses

13. As to (1) above, what the judge said was this: "He has given no details about how he could afford to live on $4,000 a month."

14. The judge was, of course, looking at the position in 1989. No evidence was adduced before the judge regarding the amounts of money the applicant needed to live. There was nothing inherently improbable in someone in the applicant's situation living on $4,000 a month: at least, not without much greater exploration of the point. We have examined the record of the proceedings and we note that the point was barely touched upon in cross-examination. The prosecutor had suggested to the applicant in cross-examination that in October 1989 he earned only $4,500 a month: that was not accepted by the applicant. The matter was then left there. The applicant said that having paid cash for the 183 packets of heroin that had left him $500 in his ETC card account: a fact which the police could have checked, he said, if they had so wished. Apparently they did not.

15. It does not appear to us that this point is nearly as conclusive as the judge had thought. Conceivably, the applicant, earning about $10,000 per month, could have sustained his drug habit without resorting to trafficking.

Weight and purity of the packets

16. As to point (2) above, it seems to us that the matter is completely neutral. The fact that the 183 packets varied in weight and purity no more indicated that the applicant had intended to sell the packets than that he had intended them for his own consumption.

Conclusion

17. There was no evidence before the court as to the "street value" of the drugs involved. The active ingredient amounted to a total of about 36 grams of salts of esters of morphine: enough, according to the applicant, to have sustained his drug habit for about two months. There was nothing inherently improbable in that assertion. The applicant had given an explanation for his bulk purchase - the fear that the supply of No. 3 heroin might become scarce - which again was not inherently improbable. The reason why he kept the bulk at room 911 - to hide the fact of his continued addiction from his family - was, again, not intrinsically unbelievable.

18. Given all these factors, the applicant's case simply could not be dismissed out of hand. The two key points on which the applicant was disbelieved on his story by the judge are, upon analysis, unsound. There were, undoubtedly circumstances of extreme suspicion but, in the outcome, they remained no more than that.

19. Having reached this point, we must conclude that the verdict on charges 1 and 2 are unsafe and unsatisfactory. This is not a case where the proviso to s83(1) of the Criminal Procedure Ordinance can properly be applied.

20. Treating the application for leave as the hearing of the appeal we set aside the verdicts of guilty on charges 1 and 2 and substitute guilty verdicts for possession instead.

21. The sentences of five years are set aside and we will now hear counsel concerning the appropriate sentences, having regard to the substituted verdicts of possession of dangerous drugs on charges 1 and 2.

22. As to sentence the position is this. The applicant was 21 years old at the time of the offences in October 1989. He was from the outset prepared to plead guilty to the offence of simple possession of the quantities of drugs constituted by charges 1 and 2. Having regard to the quantities involved our judgment is that in relation to the charge of possession of dangerous drugs in charge 1 he should be sentenced to one year's imprisonment. In relation to the charge of possession of dangerous drugs in charge 2 he should be sentenced to two years' imprisonment to be served concurrently with the sentence on charge 1. As to the sentence of three months' imprisonment on charge 3 that remains to be served concurrently with the other two charges, with the result that in relation to the three offences committed in October 1989 the total would amount to two years' imprisonment. These terms are to be served consecutively to the terms imposed in the magistrate's court in March 1994 which we are told amounted to a total of 18 months.