HKSAR v. DINH KA YAN, GIGI

CACC 122/2021 [2023] HKCA 1100

On appeal from [2021] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 122 OF 2021

(ON APPEAL FROM HCCC NO 398 OF 2019)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 22 July 2020, following a trial before Campbell-Moffat J (the Judge)  and a jury, the appellant was convicted of trafficking in a dangerous drug, consisting of 27.89 grammes of a crystalline solid containing 27.58 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  On 2 June 2021, nearly a year after the appellant’s conviction, the Judge sentenced her to 8 years’ imprisonment.  During this period, the Judge received submissions on the question as to what extent she could sentence the appellant contrary to the jury’s verdict.

3.  On 11 June 2021, the appellant filed a notice of application for leave to appeal against conviction and sentence, without specifying any grounds of appeal.  On 11 January 2022, counsel then representing the appellant filed perfected grounds of appeal against conviction and sentence.  On 3 November 2022, a Single Judge[1] refused the appellant leave to appeal against conviction but granted her leave to appeal her sentence.

4.  On 7 November 2022, the appellant filed a renewed  application for leave to appeal against conviction, which was subsequently abandoned by notice filed on 6 February 2023. 

5.  On 21 December 2022, Mr Chan Pak Kong, for the appellant, filed perfected grounds of appeal against sentence in place of the previous grounds, which can be summarised as follows: (1)  the Judge erred in failing to consider sufficiently the appellant’s mitigating factor that a significant portion of the dangerous drugs in question were for her own consumption, which was consistent with the guilty verdict of trafficking, and hence the Judge erred in failing to give an adequate sentencing discount to the appellant; and (2)  considering the evidence as a whole and the way the prosecution presented its case at trial, there was a real possibility that the jury may have convicted the appellant on the basis that she intended to share the drugs in the small bag (0.79 gramme of a crystalline solid containing 0.78 gramme of Ice)  with her boyfriend whereas all or a significant portion of the drugs in the large bag (27.1 grammes of a crystalline solid containing 26.8 grammes of Ice)  were for her own consumption. 

6.  It is submitted on behalf of the appellant that her sentence of 8 years’ imprisonment was manifestly excessive.

The case at trial

7.  It was not in dispute that in the early hours of 13 April 2019, the appellant and another Vietnamese woman were stopped by police officers outside 530 Nathan Road, Kowloon.  The appellant was searched by the officers, who found inside the left pocket of her denim jacket two transparent re-sealable plastic bags, a large bag containing 26.8 grammes of Ice and a small bag containing 0.78 gramme of Ice.  They also found in the right pocket of her jacket cash in the sum of $6,000 and inside her handbag $825 cash, a small quantity of foreign currency, and a dual SIM card telephone.

8.  The appellant was arrested and cautioned, and in response, she said she bought the Ice for her own consumption.

9.  It was also not in dispute that the appellant was a drug addict.  In fact, her addiction to drugs, including Ice, formed a significant part of the defence case in support of her contention that the Ice found in her possession was for her own consumption.  It was an admitted fact that she tested positive for Ice when she was taken into custody. 

10.  In a subsequent video recorded interview, which was adduced into evidence by agreement between the parties, the appellant stated that she was unemployed; she had no income except for Comprehensive Social Security Assistance of $8,000 per month; and she lived in a public housing flat in Tsing Yi.  The social welfare benefits she received were for herself and her three children.

11.  The appellant gave evidence in her defence.  She testified that all the drugs found in her possession were for her own consumption, including the small bag of drugs.  She explained that she purchased an ounce of Ice from a person called Zacs, a friend of her boyfriend.  Zacs and her boyfriend lived in Chungking Mansions.  She said she bought this quantity of Ice because it was of “good quality”, and she got it at a “good price” of $5,600.  She also explained that she had the small bag because she had asked that a small quantity be separated from the ounce she had purchased so that she could consume it straight away.  She testified that she never shared drugs with her boyfriend, but they would consume drugs together.  At the time of her arrest, she was going to consume drugs with her boyfriend at Chungking Mansions, but she did not want him to know about the drugs in the large bag.  After she had consumed the drugs, she intended to go home. 

12.  The appellant claimed she had the financial means to purchase drugs.  She said that she had funds hidden inside her home. She had received a $70,000 inheritance and about $20,000 per month from various sources, including social welfare benefits.  She also claimed that she was addicted to Ice and consumed it daily.  The cash she had was kept in a safe in a wardrobe in her living room.  The drugs together with an Ice bottle were in a double cupboard in the kitchen, which the police had not searched.  The police officers testified that they had thoroughly searched the appellant’s home and did not find anything illicit.  The prosecution queried that if she was a drug addict as she claimed, why did the police not find anything in her home that evidenced her addiction.

13.  The appellant was extensively cross-examined that she was not telling the truth about the drugs being for her own consumption and the source of the funds she had at her disposal.  Other than alleging that she was trafficking in the drugs, the prosecution presented its case on several bases.  Prosecuting counsel, in his closing speech, gave the jury several options on which to convict the appellant for trafficking, which the Judge described as a range of possibilities.[2] They were:

(1)  All the drugs were for trafficking by the appellant, and none were for the appellant’s personal consumption.[3] 

(2)  Part of the drugs were for trafficking by the appellant, and some were for the appellant’s personal consumption.[4] 

(3)  Part of the drugs were for sharing by the appellant, for the purposes of “social trafficking”.[5] 

14.  Prosecuting counsel emphasised with the jury that, “If you share your drugs with a friend or an associate or someone you work with, that is trafficking.  It’s known in the jargon here as, ‘social trafficking’, but it is still trafficking”[6]. He then noted the appellant’s defence that she did not share her drugs with anyone else, but a little later on he said, “even if only a small part of that large bag, larger bag I should say, of drugs was for trafficking, the sharing or selling to other people, then that is possession for the purpose of trafficking and she’d be guilty.”[7] He submitted that, it did not make sense that the appellant never shared her drugs with others, particularly with her boyfriend[8]. 

15.  The Judge articulated the various options of the prosecution case to the jury as follows:[9]

“Now, of course, Mr McGowan’s case is this. He cannot tell you exactly what she was going to do with it. There are a range of options. …

And that range; at the moment I am just giving you the possibilities here at the moment; that range could be, ‘I bought an ounce at a good rate in order to sell it on ultimately at a profit.’ That is a range, and if you are going to sell it on at a profit, from what I have said earlier, that would be trafficking. Yes?

‘I have got an ounce from which I have got a little bag and I am going to keep some of it to consume myself and sell some of it on.’ That is trafficking, from what I have said. ‘I have taken that ounce out, I am going to use that ounce myself, but also I am going to use that ounce’ -- not the ounce, sorry. The gramme, the 0.79, ‘I am going to smoke it with my boyfriend.’ So this part that I have bought, if she did indeed buy it, and shares it with the boyfriend, that would be trafficking because she is giving away, even if it is not commercial, it is trafficking.

‘I am going to -- I am lucky I have got money. I have savings’, or whatever. ‘I bought it at a good rate, I am just going to, whenever I use it, share it with the odd friend, share it with my colleagues. If they want to buy some, they can buy some. If they cannot buy some, I might share it.’ I do not know. This bag that is left could be dealt with in all sorts of different ways.

So long as she is not keeping it to herself, entirely to herself, then those activities would be trafficking. Because any form of dealing in it where another person is involved, is trafficking. Does that help? I think because there is a range here and I need you to understand that there is a range because only you can decide what you are sure about as to what would happen to it when we have gone through the evidence.

But everything from commercial sale to opportunistic sale to sharing with somebody, non-commercially, no money moving, any one of that range in handling a dangerous drug would be trafficking if you did not just use it yourself.

So it is really, you have to decide the possession, etc, because you must have a tick on every single one of those boxes, all four. But it is really, the issue is, was there any form of trafficking here? If there was, what was it and are you sure of it?” (Emphasis added)

16.  The Judge then instructed the jury that if they were sure the appellant was in possession of dangerous drugs, but not sure she was in possession of them for the purposes of trafficking, “either commercially or socially”, they could convict her of the lesser charge of possession of a dangerous drug[10].

The sentencing of the appellant

17.  On 22 July 2020, the jury found the appellant guilty of the trafficking offence.  The Judge adjourned the sentencing of the appellant to 24 July 2020. 

18.  At the hearing on 24 July 2020, defence counsel filed a written submission in mitigation in which he contended that the Judge should deal with the appellant on the basis that the drugs in the small bag were for trafficking because they were to be shared with her boyfriend, while the drugs in the large bag were intended for her own consumption[11].  He urged the Judge to sentence the appellant on the basis of two charges, one for trafficking in the drugs contained in the small bag, and  the other for unlawful possession of the drugs in the large bag, relying on HKSAR v Gurung Laxman[12].  That case concerned the Court of Appeal disagreeing with the reasons of a judge alone in drawing an inference of trafficking of a particular quantity of drugs when the only reasonable inference was that the drugs were for self-consumption.  The Court in so finding amended the charge sheet on appeal by adding an unlawful possession charge as appropriate.

19.  The Judge rejected the defence submission because there was no justification to interpret the jury’s verdict on the basis as proposed.  She informed defence counsel that if any new evidence was to be presented on the issues of self-consumption and the appellant’s ability to pay for the drugs it had to be done in a Newton hearing.  Accordingly, the case was adjourned to 30 July 2020, which was further adjourned to 12 August 2020 because the appellant was not well.

20.  On 12 August 2020, defence counsel indicated to the Judge that the appellant would not be giving evidence on the issue of self-consumption and the source of the money but instead would rely on the evidence that she gave at trial.  There was discussion about whether the Judge could go behind the basis of the jury’s verdict, and as a consequence, she ordered that the parties be provided with a transcript of the closing speeches and the summing-up.  In addition, there was also argument about the forfeiture of the money found on the appellant at the time of the offence.  She directed counsel to file a written submission 21 days after receipt of the transcripts, which were to address the issue of the jury’s verdict and the forfeiture of the money. 

21.  A written submission dated 5 November 2020 was filed by defence counsel, which essentially reiterated the arguments he had advanced in his previous written submission.  In response, prosecuting counsel filed a written submission dated 7 December 2020, in which he submitted that the appellant was inviting the court to go behind the jury’s verdict.  He set out an analysis of the evidence and the case against the appellant, advocating that the jury must have disbelieved the appellant and convicted her on the basis that she was trafficking all the drugs.  He submitted that where the verdict is equivocal, it was open to the court, applying the criminal standard of proof, to find as established such facts as are supported by the evidence.  He further submitted that where the factual implication of the jury’s verdict was ambiguous, the judge was not bound to assume that the jury convicted on the basis of a view of the facts most favourable to the defendant.

22.  Unfortunately, there is no reference to counsel’s written submissions, particularly the one submitted by prosecuting counsel, on the approach the Judge should take on sentencing, either in the court papers or in the Judge’s reasons for sentence.  Nor have the parties, in their submissions to us, addressed the relevant legal principles regarding the approach a sentencing court should take when there is more than one possible interpretation of a jury’s verdict.  We will return to this subject matter later in our discussion.

23.  On 2 June 2021, the Judge handed down her reasons for sentence and forfeiture of $4,500 that was in the appellant’s possession at the time of the offence[13]. She found that the drugs were not for the appellant’s own consumption save perhaps for a very small amount which she might have consumed with her boyfriend[14].

24.  Applying the guidelines in HKSAR v Tam Yi Chun[15] for the quantity of 27.58 grammes of Ice, the Judge adopted a starting point of 8 years and 2 months’ imprisonment which she reduced by 2 months for the fact that the appellant possibly possessed part of the 0.78 gramme of Ice for self-consumption.  She further explained that she calculated the discount taking into account the latent risk that the appellant would not consume the drugs but would have shared them with her boyfriend or sold them if the opportunity arose[16]. 

25.  On the question of self-consumption, the Judge gave a full explanation in her reasons for sentence for the position she took on this issue and why she rejected the suggestion by the appellant that the drugs were for her personal consumption except for the drugs in the small bag[17].

Discussion

26.  Mr Chan submits that given the circumstances of this case and how the prosecution presented its case to the jury, there is a real possibility that the jury convicted the appellant on the ground that she intended to share the small bag of drugs with her boyfriend and keep the large bag of drugs for her own consumption.  He lists eight possibilities on which the jury may have returned a verdict, reflecting the permutations and combinations of the drugs in the small and large bags respectively for self-consumption or trafficking.  He notes that the Judge disbelieved that most of the drugs were for the appellant’s own consumption mainly because she was not satisfied that the appellant had the financial means to purchase the drugs in question or that the appellant was a heavy user of Ice, who would consume such a quantity of drugs.  He seeks to reargue the appellant’s case by addressing her evidence concerning her financial means to purchase the drugs to consume them rather than trade in them, and to critically analyse the judge’s reasons for rejecting this aspect of the appellant’s case. 

27.  Mr Chan also seeks to produce new material to show that the appellant maintained a safe in her home to support the proposition that she kept a safe to store her money in cash.  This new material consists of photographs taken by the appellant’s daughter purportedly of the wardrobe and the safe in question.  There has been no compliance with the requirements to admit fresh evidence on appeal[18]. No verification has been provided as to the taking of the photographs and by whom, nor has a reasonable explanation been provided for the failure to adduce this evidence at trial.  In any event, these photographs do not undermine the finding based on other evidence that the appellant was not a heavy abuser of Ice, requiring the large quantity of the drugs which she purchased, and that she purchased the drugs to trade in them. 

28.  The respondent argues that when the Judge discussed the range of options or possibilities, she was setting out examples for the jury to better understand the concept of trafficking.  It is submitted that the Judge later, in her summing-up, delineated the prosecution case in respect of the two bags.  Of the small bag of drugs, it was put that the appellant would consume the drugs herself or share them with her boyfriend[19].  Of the large bag of drugs, it was put that the appellant was to deal in them by moving them on.[20]  The Judge summarised the prosecution case as follows:[21]

“But it still boils down to Mr McGowan saying that from the proven facts, the only reasonable inference that you can draw is, that this lady was not a large consumer of ‘Ice’ at the rate that she says. I think it is fair to say the prosecution accept that she most probably did consume some ‘Ice’ and most probably, given the division of the packets, might have consumed the smaller packet. But the prosecution says that the only reasonable inference to draw is that she would have done so with somebody else, the most obvious person, seeing as she said herself she was going to be with her boyfriend, consuming it with him, or somebody else. But that the rest would not have been for her and it would have been moved on. They do not know how. …”

29.  The respondent contends that it is clear from the Judge’s summing-up that the case the jury was to decide was whether the appellant purchased the drugs to traffic them and that the small bag she had or may have had for personal consumption or sharing with her boyfriend.  

30.  It is a fundamental principle that a sentence should be consistent with the jury’s verdict and supported by evidence.  When there is only one possible interpretation of the jury’s verdict, the judge must sentence on that basis.  Otherwise, if there is more than one possible interpretation, the judge should, applying the criminal standard of proof, determine the factual basis upon which to pass sentence on a consideration of the evidence at trial.  The judge is entitled to reach his own view of the facts relevant to sentencing provided that such view is not inconsistent or in conflict with the verdict.  He is not bound to accept the version of facts most favourable to the defendant: R v Cheng Chi Keung [22].  However, if “there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness)  he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part)  most favourable to the defendant”:  R v King [23].

31.  The relevant principles regarding the approach a sentencing court should take when there is more than one possible interpretation of a jury’s verdict were summarised by the English Court of Appeal in R v Bertram [24], as follows:

“20.  Where, for instance, one or more plausible alternatives are left to the jury, as the foundation of the verdict “in those circumstances, the court has to be extremely astute to give the benefit of any doubt to a defendant about the basis on which a jury has convicted” per Watkins LJ in R v Stosiek (1982)  4 Cr App R (S)  205.

  21.  Put otherwise, where a jury’s verdict is consistent with more than one version of the facts, it is for the judge, carefully applying the criminal standard of proof, to determine which version is correct.  Accordingly, when the basis of the jury’s verdict is not clear, where there is uncertainty as to what the jury concluded, the judge is under a positive duty to decide the factual basis for the sentence (see R v Cloud [2001] 2 Cr App R (S)  97).  When discharging that duty, where there is genuine confusion, or obscurity, such as to make it impossible for a judge to make a positive finding to the criminal standard, then the sentence should be on the basis most favourable to the defendant (see R v Tovey [1993] 14 Cr App R (S)  766). …”  

32.  We also endorse the general statements of principle by Stock JA in HKSAR v Yee Yiu Sam [25], where he said:

“37. Where upon the delivery of a verdict or the entering of a plea of guilty to an offence, the verdict, or the plea, is consistent with more than one version, or suggested version, of facts underlying the verdict or plea, then it is for the sentencing judge to determine that factual basis, although in doing so he must not sentence on a basis which is inconsistent with the jury’s verdict, or contrary to the constituent elements of the offence to which that the defendant has pleaded guilty. The judge is not bound to accept whatever mitigation as advanced, nor is he bound to adopt the version most favourable to the defendant. Where, after a guilty plea, a version is put forward which is clearly implausible, then a judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to the sentence. Otherwise, the sentencing tribunal should hear evidence to enable it to determine the proper factual basis for sentence. …”

33.  As we have already noted, the Judge did not explain the approach that she was taking in determining the factual basis on which to sentence the appellant in light of the equivocal verdict of the jury. However, it would appear that she had counsel’s written submissions in mind, particularly prosecuting counsel’s submission, who correctly addressed this issue, explaining the relevant case law and the approach the Judge should take.  She set out a detailed overview of the evidence and the issues at trial, incorporating on occasion information and material submitted during sentencing.  Nonetheless, it is apparent that she was conducting an evaluative assessment of the evidence in determining the factual basis upon which to pass sentence.  There is no reason to assume that in doing so, she was not mindful of the relevant legal principles in making such an assessment to the criminal standard. 

34.  We are not persuaded by Mr Chan’s evaluation of the evidence because it is not based on a proper assessment of the evidence at trial according to the criminal standard.  He is mainly rearguing the defence case and also relying on extraneous material to support his evaluation.  A significant point that should not be overlooked is that the Judge had the benefit of seeing and hearing the trial evidence, and unless it can be shown that a judge’s assessment of the evidence was plainly wrong or unreasonable, an appellate court will be reluctant to interfere with the judge’s findings.

35.  On the issue of the appellant’s financial means to purchase and keep the drugs, and not trade in them to make some profit to feed her drug habit, the Judge did not accept that a safe existed in the appellant’s home, in which she stored a large sum of cash and that the appellant possessed $70,000, which she claimed she held on her daughter’s behalf[26]. On the issue that the appellant was a heavy drug user and all the drugs were for her own consumption, the Judge did not accept the appellant’s explanation that the police did not find any drugs or associated paraphernalia for consumption because they were hidden in a kitchen cupboard[27].

36.  It is clear from her detailed analysis of the evidence that the Judge applied the criminal standard of proof in rejecting the appellant’s defence that the drugs were for her own consumption.  Having rejected the appellant’s defence, it was inevitable on the evidence according to the criminal standard that the appellant was trafficking in the drugs.

37.  As we have stated, when a judge approaches the task of sentencing a defendant convicted by a jury, he or she should form his or her own view of the facts, but in doing so he or she must not form a view which is inconsistent or in conflict with the verdict of the jury.  We are satisfied that the judge took the correct approach in her assessment of the evidence at trial and that it was consistent with the jury’s verdict.

Conclusion

38.  It follows from what we have said that we are satisfied that the Judge correctly determined the factual basis on which to pass sentence against the appellant.  Accordingly, the sentence stands and the appeal against sentence is dismissed.