LEE CHUN TAT v. HKSAR

FAMC No. 52 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 271 OF 2005)

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D E T E R M I N A T I O N

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Chief Justice Li:

1.  On 31 May 2005, the applicant was convicted after trial in the District Court (Judge Sweeney) of the offence of possession of a dangerous drug for the purpose of unlawful trafficking.  The offence had been committed in February 1985.  But the applicant had absconded whilst on bail and was extradited from the USA in December 2004.

2.  The admitted facts were as follows:

“On 23 February 1985, PW1-4 were patrolling in Wanchai area in 2 groups where PW1-2 spotted a male (later known to be the Defendant), who was walking towards them, suddenly turned round and fled.  PW1 and PW2 gave chase and during the course, they saw the Defendant threw something underneath his jacket onto the pavement and continued to flee.  The shouting and yelling alerted PW3-4 and they guarded the packets disposed by the Defendant and it was revealed to be 10 packets of suspected dangerous drugs.  On the other hand, whilst PW1-2 [were] chasing the Defendant, an off-duty police officer (PW5), who happened to be in the vicinity, was also alerted, and they eventually intercepted the Defendant and he was arrested.  Under caution, the Defendant remained silent.”

The dangerous drugs contained in the ten packets, consisted of a mixture weighing 88.96 grammes containing 17.61 grammes of salts of esters of morphine.  Based on the average consumption of a heroin addict set out in the unreported decision in The Queen v Cheung Ping-chiu CACC 162/1993, the quantity of drugs in the present case was equivalent to about 25 days supply.

3.  At trial, the applicant did not give evidence.  He offered to plead guilty to possession of the dangerous drugs but denied possession for the purpose of trafficking.

4.  On 6 September 2006, the Court of Appeal by majority (Stuart-Moore VP and Tang JA with Stock JA dissenting) dismissed the appeal against conviction.

5.  In seeking leave to appeal on the substantial and grave injustice limb, the essential argument of Mr Bruce SC for the applicant is that the circumstantial evidence against the applicant contained in the admitted facts was insufficient to establish an irresistible inference of trafficking.  In support, the decision of the Court of Final Appeal in Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198 is relied on.  In that case, the Court held that the judge had misdirected the jury on matters of the burden and standard of proof and then proceeded to consider whether the proviso should be applied.  In deciding that it is not a case for the application of the proviso, Ching PJ said at 203 F-J:

“The circumstantial evidence against the appellant was strong.  He was in possession of a large quantity of drugs, but it was not so large as to be incompatiable for being for his own use.  They were packaged in a way suitable for sale, but they could have been purchased by him in that form.  They were found on him in the street in the very small hours of the morning.  They were found on him after he had emerged from a building in which he had rented premises.  Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises.  There was no evidence that he was on his way home to Shatin.  His own evidence was to the contrary.  Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking.  There was no evidence that he was an addict or a user of the drugs, but that in the circumstances is a neutral factor.  It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking.  I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking.  Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.”

6.  The passage quoted above is relied on by the applicant.  But it is important to remember that its context was that the Court was considering the application of the proviso: whether a reasonable jury, properly directed, would on the evidence in that case inevitably have convicted for trafficking.

7.  If one were concerned with the application of the proviso in the present case, the proper conclusion may well have been that the relevant test would not have been satisfied.  It could not be said that a tribunal of fact properly directed would on the circumstantial evidence have inevitably convicted.  But the present case is concerned not with the proviso but with a different situation.  The Judge had convicted the applicant of trafficking.  The Court of Appeal had to decide whether the conviction was unsafe or unsatisfactory.  See s. 83(1)(a) of the Criminal Procedure Ordinance, Cap 221.  The question was whether the Judge was entitled to draw the irresistible inference of trafficking from the circumstantial evidence.

8.  On the circumstantial evidence here, it could not be said that a tribunal of fact properly directed must draw the irresistible inference of trafficking and convict.  Equally, it could not be said that a tribunal of fact must conclude that such inference cannot be drawn and acquit.  It was for the Judge as the tribunal of fact to decide whether the circumstantial evidence was sufficient to establish an irresistible inference of trafficking.  The Judge held that it was sufficient.  The Court of Appeal by majority held that the Judge was entitled to come to this conclusion.  Stuart-Moore VP (at para 24) put the matter in this way.

“There was, however, no evidence of any kind to suggest that the applicant was himself a consumer of dangerous drugs.  For the judge to have convicted of simple possession, he would have needed to take an approach which not only conflicted with a perfectly reasonable prima facie case of trafficking but also involved engaging in wholly unsubstantiated guesswork that the applicant was or may have been a heroin addict who needed this large quantity for self-consumption.  Trafficking, on the other hand, was a natural and unavoidable inference on the facts of this particular case once it had been established that the applicant was in a public street, that the drugs were separately wrapped inside ten packets and that the quantity, bearing in mind the normal rate of consumption on the part of users, was relatively substantial.”

Further, the Vice-President noted (at para 26) that the reason for the applicant’s admitted possession was something peculiarly within his knowledge.  And he observed:

“If there had been any hesitation about drawing an inference that he was trafficking, and the trial judge expressed none, the absence of any explanation from the applicant was in my opinion a circumstance, …, which could be taken into account for the purpose of evaluating the evidence.”

9.  Stock JA dissenting held that the circumstantial evidence was insufficient for the drawing of the irresistible inference.

10.  In our view, the majority approach in the Court of Appeal could not be faulted and was plainly correct.  No reasonably arguable case of substantial and grave injustice has been shown.  Accordingly, the application for extension of time and for leave is dismissed.