HKSAR v. CHEW SIK POK

CACC502/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 502 OF 1998

(ON APPEAL FROM HCCC 111 OF 1998)

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J U D G M E N T

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

1. The applicant faced one count of trafficking in a dangerous drug. It was particularized that he, on 29th December 1997, at the Sham Shui Po Mass Transit Railway Station, unlawfully trafficked in a dangerous drug, namely 25.55 grammes of crystalline solid containing 24.12 grammes of methamphetamine hydrochloride. He pleaded not guilty to that charge but was found guilty after trial before Deputy Judge Wong and a jury and was sentenced to imprisonment for seven years and nine months. He now appeals against both conviction and sentence.

2. The facts which we take from the summing-up were as follows:

"..... on 29 December 1997 at 4.50 p.m., Police Constable 52946 was on duty with other police officers inside Sham Shui Po MTR Station With his colleagues. He saw the defendant standing opposite the 7-Elevan store, looking around. Three minutes later, the defendant took out from his left upper garment pocket a red Marlboro cigarette box which is Exhibit P1. He walked to the rubbish bin and placed it into the rubbish bin and stood next to that bin and continued to look around.

A few minutes later, a man walked near that rubbish bin and the defendant asked that man not to stand there. Half a minute later, the defendant walked away. Then PC 49765 went up to PC52946. PC52946 then asked PC49765 to look into that bin to see what was inside. And then PC59246 went to stop the defendant and said that he suspected the defendant was in possession of dangerous drugs and wanted to search him. Then PC49765 went to PC52946, holding that Marlboro cigarette box which he picked up from the rubbish bin.

PC49765 then took out two packets of the suspected 'Ice' and had a look. He then arrested the defendant for possession of dangerous drugs and cautioned him. In reply, the defendant said 'Ah Sir, I bought it for my own consumption. Give me a chance.'

He was then taken to the police facility room in the MTR station to have a search but nothing suspicious was found on him. On the way to a police facility room, a man called Lau Shiu-wah approached and said that he had an appointment with the defendant. Lau was taken to the MTR staff changing room to be interrogated but was released later, after questioning. The defendant explained that he was in the MTR station waiting for Lau as he had arranged to meet Lau there to discuss Lau's girlfriend's home removal.

The defendant was then taken to the Sham Shui Po Police Station where PC52946 made a post-record of what happened at the MTR station and, after that, a record of interview. These are the exhibits which copies have been given to you and I shall not go over it again. After that, a party of police went to the defendant's flat at Room 807, Block 13, Pak Tin Estate for house search and nothing suspicious or illegal was found."

3. There was a statement from the Government Chemist to the effect that the average dose of Ice "per hit." for addicts in Hong Kong is up to 0.7 grammes. From the evidence of the defendant the quantity which he was carrying would, as he was taking less than the average dose "per hit." referred to by the Government Chemist, have provided him with a supply for about six weeks.

4. The defendant gave evidence which was largely in accord with the evidence that had been given by the prosecution. He said he purchased the 'ice'; that he was on his way home but that he had to meet a man called Lau in Sham Shui Po MTR station; that he went to the station where he thought he was being watched, became frightened and threw the ice packet into the rubbish bin. He admitted telling a man who had looked into the bin to leave because he was afraid the man would take his drugs.

5. The first Ground of Appeal argued by Mr. Wong, for the applicant, submitted that the judge erred in directing the jury that the applicant could be convicted of the offence of trafficking even if they were only satisfied that some of the drugs were for trafficking and some were for self consumption when there was no issue at trial either in the prosecution's case or in the defence case that some were for trafficking and some were for self-consumption. We must say that we are rather puzzled when seeking to ascertain why such a direction was given. The prosecution case was, quite clearly, that the applicant had these drugs in his possession for the purpose of trafficking. The defence, on the contrary, was that he had them for his own consumption. In our view a direction of this nature was not called for in the circumstances of the present case. We would not, however, had this stood alone, have been satisfied that it would have warranted our interfering with the conviction.

6. The second ground suggests that the judge erred in directing the jury that they had to consider the behaviour of the applicant in order to find whether he was dealing with dangerous drugs. We find it difficult to see how those directions of the judge can be faulted. Of course he was entitled to tell the jury that they should look at all the applicant did when under observation by the police officers when coming to their conclusion as to whether or not he was trafficking.

7. The third ground, however, is one which gives us considerable concern. This complains of the following direction which the judge gave to the jury as to the use that they could make of the cautioned statement:

"When the defendant was cautioned by police, he made a statement and also in the police station he had a record of interview. From the post-record and also the record of interview, the defendant admitted or incriminates himself by admitted that he is in possession of those dangerous drugs but he also gave an explanation. So this statement contains an admission and also an explanation.

A statement which contains an admission is always admissible as evidence - we call it a 'declaration against interest'. And so it is evidence of the facts alleged or admitted. With this exception, a statement made by an accused is never evidence of the facts in that statement.

But a statement that is not an admission is also admissible to show the attitude of the accused at the time when he made it. So you are entitled to consider the whole statement - that is, both the incriminating parts and the excuses. Both must be considered in determining where the truth lies."

8. This direction was, to say the least of it, confusing. We are not sure what the jury would have made of the direction that the statement was "evidence of the facts alleged or admitted" and, indeed, we are unable to say what they would have thought when told that "With this exception, a statement made by an accused is never evidence of the facts in the statement." It seems to us that the judge was here giving a direction which might have applied had the defendant not given any evidence. Of course in the present case he did give evidence and he gave evidence which was entirely in accord with the statement which he had made after his arrest. The only proper direction in such circumstances was that the evidence of the applicant was in accord with his cautioned statement, that there was no inconsistency between the evidence and the statement, and that the statement therefore gave support to the credibility of the applicant when giving evidence. It was, further, we are satisfied, dangerous and confusing, given that the charge is one of trafficking, in terms that they could consider "incriminating parts" of it upon coming to their verdict. In the context of the charge and the defence thereto the statement was wholly exculpatory.

9. We turn to Ground 4.

10. In this ground it is submitted that the judge erred in failing to direct or point out to the jury that the defence case that the applicant had the drugs for the purpose of self-consumption was supported by overwhelming evidence and that there was no evidence to contradict the evidence of the defendant and his witness as to the important matters in issue. While we think the use of the word "overwhelming" might be too strong, it certainly can be argued that there was no cogent evidence to contradict the evidence of the applicant. The real issue for the decision of the jury was whether the quantity of Ice and the applicant's actions at the Sham Shui Po MTR Station were sufficient to satisfy them beyond reasonable doubt that he was unlawfully trafficking. The jury should, in fairness, have been told that the quantity was not, in itself, a cogent evidence given the evidence of the Government Chemist and of the applicant himself which indicates that he had only what would have been about 11/2 months' supply. It would have been fair further to observe that the evidence of his actions at the MTR station was just as consistent with his version as it was with the prosecution version and, particularly, to advert to the fact that it was supported by the evidence of an apparently independent witness. The jury should have been told that they would have wholly to reject the applicant's evidence which was not, in itself, inherently incredible, before they could they convict.

11. We turn to see how the judge put the matter to the jury.

12. Having given the confused direction as to the cautioned statement, he went on to tell the jury that they had to arrive at a verdict in accordance with the evidence but he never set out the real issue. The consistency of the defendant's version in his cautioned statement and in his evidence the fact that the quantity was just as consistent with being for his own consumption as it was with trafficking, the fact that his actions were just as consistent with his own version as they were with the prosecution case were referred to by the judge. This was a far from strong case. Indeed some judges might not have allowed it to go to the jury. Accepting that there was some evidence of trafficking, this matter required a careful and balanced summing up emphasizing the very considerable body of evidence helpful to the accused. This it did not get. The judge never identified the issues for the jury. The summing-up was not tailored to the facts of the case and this, in our view, fatally flaws the conviction.

13. The application will be allowed. The hearing of the application is treated as the hearing of the appeal and the conviction quashed. We are satisfied that there is sufficient evidence, indeed it is admitted by the applicant, that he was in possession of dangerous drugs and that the conviction should have been recorded for simple possession and we substitute such a conviction for the conviction of trafficking that was imposed.

Sentence

14. We have already quashed the conviction for trafficking and imposed a conviction for simple possession. The facts revealed that the applicant was arrested on 29th December 1997 at the Sham Shui Po Mass Transit Railway station when he had in his possession 25.55 grammes of a crystalline solid containing 24.12 grammes of methamphetamine hydrochloride - the drug commonly known as Ice. He was charged with trafficking and pleaded not guilty. He was found guilty after trial before Deputy Judge Wong and a jury and came before this court appealing against that conviction and was successful. The amount was not large. His evidence was that he was an addict, that he had the amount there for his own consumption and that he would have consumed that amount in about six weeks. He said that at the time he was taking the drugs home having just purchased them. He is clearly a drug addict as he has had eight convictions for possession of drugs since 1992. We note that he has no conviction for possession for the purpose of trafficking. We note also that he was in employment at the time of his arrest. These are, when we come to consider what is known as the latent risk factor, important considerations. Following the judgment in HKSAR v. LAI Kam-sang, Criminal Appeal No.578 of 1998, we are satisfied that we must start at the currently accepted sentence for simple possession, which is 18 months, and must then, if it is appropriate, enhance that sentence for latent risk. In this case, given the amount and given the time which the applicant admits that he would have that amount in his possession, reducing, of course, from day to day, we are satisfied that there was a latent risk but that it was not one of any real gravity. We certainly do not approximate this latent risk to that which existed in the case of Lau Chi-chiu, Criminal appeal No. 395 of 1998, where the defendant had 63.38 grammes of Ice. We are satisfied, given that that his original intention was to take the drugs to his home where he usually kept them, that he is in regular employment and that he has clearly been an addict for a number of years without any conviction for trafficking, that the latent risk should attract a sentence of a further six months. We therefore add six months to the 18 months, for simple possession, giving us a total of 24 months. He is entitled to the usual discount for plea as he has at all times been prepared to plead to simple possession. This brings the sentence back to 16 months.

15. The conviction for trafficking has already been quashed and the original sentence has fallen with it. We substitute, therefore, a conviction for simple possession and impose a sentence of 16 months.