HKSAR v. WANG QING

HCMA 646/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 646 OF 2013

(ON APPEAL FROM KCCC 1296 OF 2013)

________________

________________

________________

________________

1. This appellant was convicted after trial in the magistracy of one charge of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”). The drug was 2.32 grammes of cocaine. The appellant was sentenced to 13½ months’ imprisonment. She appealed against conviction only.

2. The facts were simple and not disputed; they were put before the court pursuant to section 65C, Criminal Procedure Ordinance, Cap 221.  The appellant admitted simple possession of the drug and denied trafficking.  A plea on that basis was offered, but was not accepted by the prosecution.

Background

3. The facts were that police raided a karaoke bar at about 4.30am and found the appellant on the premises.  A search revealed, in the left cup of her bra, a plastic bag wrapped by a rubber band containing 13 small plastic bags which in total contained 1.49 grammes of a solid containing 1.4 grammes of cocaine.

4. In the right cup of her bra was a plastic bag wrapped with a rubber band in which were 12 small plastic bags, containing 1.46 grammes of a solid containing 1.18 grammes of cocaine.  The appellant had $26,000 in cash in her wallet.  When arrested and cautioned she said the drugs were ‘coke’ for her own consumption.

5. The appellant had a clear record.  In a later video interview she explained in some detail the source of the cash.  She exercised her right to refuse to answer questions about the drugs, their provenance, their storage, how they came to be in her bra, where and at what occupation she worked and who she worked with.

6. At trial the prosecution did not seek to rely on the cash as indicative of trafficking.  The appellant did not give evidence.  The only evidence was her possession, the number of packets and the nature of the packaging.  There was no evidence about the retail value of the drug, nor about the usual dosage and method of consumption.  It was not shown what the appellant was doing at the premises, or whether she or anyone else was trafficking there.  There was no evidence of any drug use at the club and no equipment connected with trafficking was produced.

7. The total quantity of drug was not large and could not, alone, give rise to an inference of trafficking.

Grounds of appeal

8. The cumulative basis of the appellant’s three grounds of appeal was that there was insufficient evidence to enable the magistrate to draw, as he did, an irresistible inference that the appellant was trafficking.  It was for the prosecution to satisfy the magistrate by excluding the possibility of the drugs being for the appellant’s self‑consumption.

Findings of the magistrate

9. The magistrate could consider the surrounding circumstances and also look at factors such as the defendant’s purpose or objective in having the drugs and could look also at the time and place of the arrest and the quantity of the drugs.

10. In paragraph 10 of his Statement of Findings the magistrate set out his view of what the appellant did and what he thought it might mean in terms of showing she was trafficking:

“ … It was revealed in Exhibits P8(3) and P8(6) that the large plastic bags were several times larger than the small packets. Comparatively, the large plastic bags were too bulky. No matter the drugs were brought by the appellant to the scene or the appellant had just bought the drugs, there was no reason for her to keep the large plastic bags because she had already had the rubber bands to tight up the small packets. Less plastic bags packing save spaces for hiding and it would reduce the risk of being discovered. Therefore, she did not need the large plastic bags. On the contrary, it would be more convenient for a trafficker to keep so many small packets of drugs in large plastic bags. The large plastic bags could even be re-used. …”

11. He opined that if the drugs were for her own use the appellant would not have needed to carry so many packets with her.  This ignored other explanations, eg that the appellant had made a purchase of drugs for her own use before her arrest.

12. He decided that the appellant had no need to use the larger plastic bags unless she was trafficking as they were too bulky.  He examined this aspect in detail although there had not been any evidence about it and he had not raised the point with counsel.

13. He considered that the drugs were in two cups of the bra because it was too bulky to have all the drugs in one cup.  No evidence had been led on that matter.

14. The magistrate initially found that the appellant brought the drugs to the scene for trafficking.  Later he referred to the drugs being brought to the scene, or having been purchased there.  There was no evidence to support either finding conclusively. 

15. Having considered all these factors he found that the drugs had not been kept by the appellant for her own consumption and convicted her.

Consideration

16. In HKSAR v Akhemetzyanova [2012] 5 HKLRD 708, at 721, it stated that:

“33. As a result of these decisions it is incumbent upon the prosecutor in drug trafficking cases where there is little evidence other than bare possession of the dangerous drugs to focus on the element of ‘trafficking’ so that he is in a position to explain clearly to the judge and jury how he intends to prove this element and on what basis he will invite the jury to find this element proven. There may be more than one basis but, if so, they should he identified. Glossing over these questions is only likely to lead to uncertainty by the judge as to how to direct the jury and confusion by the jury as to how they should satisfy themselves as to this element of the offence.”

17. The matters that the magistrate relied on as showing trafficking were equally compatible with possession for self‑consumption.  It was not possible on the basis of the evidence, which at best amounted to the number of packets and the packaging, for the magistrate to draw an irresistible inference of trafficking.  She was entitled to the benefit of the doubt raised by the evidence.

18. Accordingly I allow the appeal, quash the conviction for trafficking and substitute for that conviction a verdict of Possession of Dangerous Drugs, contrary to section 8 of the Ordinance.  I quash the sentence of 13½ months imposed by the magistrate and substitute for it such sentence as will allow the appellant’s immediate release.