HKSAR v. NG CHI WAI

CACC 349/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2010

(ON APPEAL FROM DCCC NO. 362 OF 2010)

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REASONS FOR JUDGMENT

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1. On 29 September 2010 the applicant was convicted after a trial before His Honour Judge Geiser in the District Court of one count of trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134 (1^st Count). He had previously in the same proceedings pleaded guilty to:

(i)  Driving whilst disqualified contrary to section 44(1)(b) of the Road Traffic Ordinance Cap 374 (Count 2)

(ii)  Using a motor vehicle without third party insurance contrary to section 4(1) and 4(2)(a) of the Motor Vehicle Insurance (Third party risks) Ordinance Cap 272 (Count 3)

2. For count 1 he was sentenced to be imprisoned for 6½ years. For counts 2 and 3, he was sentenced to be imprisoned for 2 months on each to be served concurrent to each other and the term of imprisonment on count 1. This resulted in a total sentence of 6½ years imprisonment.

3. On courts 2 and 3 the judge disqualified the applicant from driving any motor vehicle for a period of 18 months and ordered that the periods of disqualification take effect from the date of his discharge from the terms of imprisonment.

4. On 24 May 2012 we allowed his applications for leave to appeal sentence and the order with respect to the commencement date of the period of his disqualification from driving.  Treating the application as the appeal, we reduced the sentence on count 1 from 6½ years to 4½ years and discharged the order which fixed the commencement date for the disqualification from driving.  These are our reasons.

Background

Count 1

5. At about 10:30pm on 20 February 2010 police officers saw a man driving a light goods vehicle stop outside a stone hut at 35B Ma Tat Tsuen Fanling.  He alighted from the vehicle and when he became aware of the presence of the police fled the scene with the police in pursuit.  He was seen to discard a white packet.  That man was the applicant.  He made good his escape and the police officers retrieved the white packet he had discarded.  The contents of that packet were ultimately determined to be 48.12 grammes of a solid containing 40.90 grammes of cocaine contained in two almost identical packets which had a street value in excess of $40,000.  The applicant was not arrested unit 10 December 2009.  He was identified at an identification parade by one of the police officers who had seen him alight from the light goods vehicle on the evening of 20 February 2009. 

6. When the matter came on for hearing in the lower court, it was an admitted fact that on 8 October 2008 the applicant had been convicted of an offence of failing to stop after an accident and had been disqualified from driving for a period of 18 months.  Thus it was that when he was driving the light goods vehicle on the evening of 20 February 2010 he was driving whilst disqualified and was as a consequence driving without valid third party insurance.

7. When the applicant first appeared before the judge he pleaded guilty to count 1 but added “that part of it was for his own consumption”.  The transcript reads as follows:

“CHARGE 1 READ

DEFENDANT: I plead guilty, but half of it was for my own consumption.

COURT: That’s a plea of not guilty, is it not?

MR WONG: [prosecuting] Yes.

COURT:  I am going to enter a plea of not guilty to that charge.”

The trial on charge 1 then proceeded.  The prosecutions case in its entirety was admitted pursuant to section 65C of the Criminal Procedure Ordinance Cap 221.  The judge found there was a case to answer.  The applicant gave evidence.

8. It was the applicant’s evidence that he was aged 38 educated to form five level and was at the date of the commission of the offence employed as a car salesman earning $30,000 to $40,000 per month. 

9. He said that he was a regular drug user and spent an average of $10,000 per month purchasing cocaine.  He used on average 28 grammes of cocaine per month and usually purchased 7 grammes at a time - ie once per week.

10. On the evening of 20 February 2009 he had purchased a larger quantity of cocaine than normal from a friend named Kelvin for $25,000.  He knew Kelvin through a colleague from work - and it was that colleague “Ah Tim” who had introduced him to the use of cocaine.  The applicant and Ah Tim regularly purchased cocaine from Kelvin.

11. He described how he consumed cocaine with specific reference to one of several inhaling devices which had been seized from a bedroom at his home when he was arrested some 8 months after the evening of 20 February 2009. This evidence was not challenged.  He said that he and Ah Tim had on previous occasions purchased cocaine for one another and on this occasion half of the drugs he had purchased were for Ah Tim.  He was cross examined and said that usually he would purchase 7 grammes of cocaine at a time for $3,500 and make a purchase 4 times per month.

12. It was his evidence that in February 2009 he was living with his mother, sister and wife and contributing $7,000 per month to the household expenses.  They all lived in a stone hut which was owned by his grandmother.  The motor vehicle he drove was provided by his employer.  His other outgoings amounted to about $4,000 per month.

13. He told the judge that the reason he had purchased more than usual on this occasion was because Kelvin had said that he would be out of Hong Kong for two weeks and offered a larger quantity at a cheaper price.  The applicant said he asked Ah Tim whether he was willing to purchase such a large amount and after discussing the matter Ah Tim agreed and the purchase was made.

14. He had not told this to the police when he was arrested because he was frightened and originally intended to plead not guilty.

15. There was no challenge by the prosecutor in his cross examination of the applicant to his evidence of

(i)  his income and expenses

(ii)  his consumption of cocaine

(iii)  the means by which he consumed cocaine

16. Other matters which emerged from the admitted facts were that when his home was searched after his arrest there was paraphernalia for consuming drugs but there was no paraphernalia normally associated with packaging of drugs.  Whilst there was no cocaine detected on the inhaling devices seized from his home there were traces of methamphetamine hydrochloride on some but not all items.  There was no cross examination of the applicant as to this nor was he asked to give any explanation.

17. The judge did not accept the applicant’s evidence and having convicted him sentenced him with reference to the Court of Appeal guidelines for sentencing for trafficking in cocaine, albeit that he adopted a starting point more appropriate for trafficking in 30 grammes of cocaine and not 40.  There was no discount given for the applicant’s offer to plead guilty.

This application

18. The judge appears to have treated the applicant’s plea of guilty as an equivocal plea and refused to accept it.  We do not think that it was.  The applicant wanted to plead guilty and advance as part of his mitigation the fact that not all of the drugs were for the purpose of trafficking.

19. In P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 pp754-5 O’Connor J said in the context of whether a plea is equivocal:

“A court cannot accept an equivocal plea of guilty: it has no discretion in the matter; faced with an equivocal plea, the court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal, the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found, when a man charged with handling a stolen motor car pleads ‘guilty to handling but I did not know it was stolen’. It is not every qualification which makes a plea of guilty equivocal; for example, the burglar charged with stealing spoons, forks and a camera, who pleads ‘guilty but I did not take the camera’ is making an unequivocal plea to burglary.”

20. In HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69,77 the Court of Appeal accepted that a qualification to a plea of guilty to trafficking in dangerous drugs to the effect that only part of the drugs was for the purposes of trafficking is nevertheless a plea of guilty.  They said this:

“29. The principle is of course well established that where a part of the drugs referred to in a drug trafficking charge is provided to have been possessed by a defendant for the purposes of trafficking, this will be a sufficient basis for a finding of guilt on a charge of trafficking even though a proportion of the same drugs is or may have been for the defendant’s personal consumption.”

In the instant case the applicant’s plea of guilty was an admission that part of the drugs were possessed by him for the purposes of trafficking.

21. The judge should have permitted the applicant to plead guilty and in the event that the prosecution did not accept that a portion of the drugs was for his own consumption the judge should have determined this issue.

22. The Court of Appeal in Wong Suet Hau indicated that this determination would usually not require a Newton - hearing but if the mitigation necessitated such a hearing and after which the mitigation was rejected, the court would be entitled to reduce the discount normally given for a plea of guilty.

23. The applicant was deprived of that opportunity.

24. It was said in the appeal that the judge erred in refusing to accept the applicant’s plea of guilty but also he was in error in rejecting the applicant’s evidence that half of the drugs were for his own consumption.

25. The judge disbelieved the applicant’s account.  He said this:

“I have considered the defendant’s evidence very carefully and I say that I do not believe his account at all. His evidence that he bought half of this quantity of cocaine for his friend Ah Tim lacks complete credibility and flies in the face of common sense. In doing what the defendant says he did he risked being caught on possession of drugs which on his account did not belong to him and he risk the possibility of not being repaid by Ah Tim. I reject the defendant’s account in its entirety.”

26. This conclusion by the judge concerned us.  The applicant’s evidence that he and Ah Tim had each on occasions purchased on behalf of the other from their supplier Kelvin was not challenged in cross examination nor was his evidence that before making the purchase he had confirmed with Ah Tim his willingness to share in the purchase. This proposition did not on the face of it “lack complete credibility” as the judge found.  This was not a valid reason to reject the applicant’s explanation.

27. That is however not the end of the matter because the judge gave a second reason for rejecting the applicant’s s account.  The judge said this:

“I also incidentally reject the defendant’s testimony that the inhaling device depicted in photographs 26 and 27 of exhibit P61 was used by him for the consumption of cocaine.”

“Whilst the inhaling device was not examined by the Government chemist as is apparent from the government chemist’s certificate Exhibit P42, all the other exhibits found together with the inhaling device in the stone hut contain traces of not cocaine but ‘Ice’.”

28. Just how in all of the circumstance this could properly form a basis for rejecting the applicant’s account as to the purchase of cocaine on the evening of 20 February 2009 was not apparent to us.  The exhibits to which the judge refers were seized when the applicant’s home was searched after his arrest on 10 December 2009.  The judge appears to be saying that because traces of another dangerous drug namely methamphetamine hydrochloride ‘Ice’ and not cocaine were found at his home therefore the applicant’s account of cocaine consumption and his purchase of cocaine must be rejected.  We do not agree.  It is to be remembered that no issue was taken by the prosecution when the applicant was cross examined as to his evidence that he was a cocaine user.

29. There were other mattes which concerned us.  The judge when rejecting the applicant’s evidence made no reference to the fact that the applicant was at the time of the offence in full time employment, and on the face of it earning sufficient to pay for his drug consumption.  There was no reference to the fact that the applicant’s evidence of his drug use was not challenged and that there was no paraphernalia commonly associated with drug packaging in his home whereas there was evidence of drug use - albeit not cocaine.

30. The judge made no reference to the fact that on the night of the offence the police found two almost identical packets of cocaine which had been discarded by the applicant as he fled and that the applicant was apparently returning to his home when he did this.

31. All of the above were factors that the Court of Appeal in Wong Suet Hau suggested were relevant to a determination of whether or not a sentencer should accept a submission that part of the drugs were for a defendant’s own consumption.  They said this at page 79:

“In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will conclude:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are sued for the consumption of drugs;

(e) whether the defendant is an addict, or is otherwise accepted to have been in habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

32. Given as we find that the judge’s reasons for not accepting the applicant’s account cannot be sustained we must in all of the circumstances consider whether it is proper to sentence him on the basis that all of the cocaine was for the purpose of trafficking.  We are unable to say that this would be appropriate.  We are satisfied that he must be sentenced on the basis that half was for trafficking and half for his own consumption.

33. When approaching this exercise we bear in mind that an appropriate allowance must be made for the fact that on the applicant’s own admission not only was he trafficking in half of these drugs he was in possession of the other half for his own consumption which attaches to it a latent risk of social trafficking.

34. There was in total 40.90 grammes of cocaine - each packet contained approximately the same amount.  On the basis that 20 gramme was for trafficking and 20 grammes for his own consumption, we consider that a starting point after trial of 6 years and 9 months was called for.  He is entitled to a full 1/3 discount for his offer to plead guilty which would reduce his sentence on charge 1 from 6½ years to 4½ years.  The appeal against sentence on charge 1 is allowed to that extent.

35. In relation to Charges 2 and 3, the judge made an order that the disqualification was to take effect upon the Applicant’s discharge from prison.  Section 69A of the Road Traffic Ordinance, Cap 374 which empowers a court to make such an order does not apply to the present case because the offences concerned took place on 20 February 2009 before section 69A took effect on 17 December 2010.  The Respondent accepted that the judge did not have power to make the order he did on 29 September 2010.