HKSAR v. NG HON PIU

CACC 295/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 295 OF 2012

(ON APPEAL FROM HCCC 325/2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.  The applicant was convicted after trial before M Poon J and a jury of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars were that the applicant, on 10 March 2011, at a room inside Pearl Hotel (“hotel room”) situated in Pitt Street, Yau Ma Tei, trafficked in a quantity of dangerous drugs, namely, 53.56 grammes of methamphetamine hydrochloride (“Ice”); 9.62 grammes of heroin hydrochloride (“heroin”), 1.32 grammes of cocaine and 120 tablets containing 0.80 gramme of nimetazepam.  He was sentenced to 9 years imprisonment for this offence.

2.  The applicant, who was unrepresented, applied for leave to appeal against his conviction and sentence.  At the conclusion of the hearing, we dismissed both applications and we indicated we would hand down our reasons, which we now do.

Prosecution case

3.  The prosecution case, in a nutshell, was that the police raided a drug‑selling/distribution divan operated inside the hotel room and the applicant was the seller/distributor.

4.  According to the prosecution evidence, on the day in question, a party of police officers broke into the said hotel room when no one answered their knocking on the door. The applicant was present inside the room with 6 other persons.  Upon search the police found a bag inside the applicant’s trousers’ pocket.  Inside the bag the following items were found:

(a) 3 transparent plastic bags with the no “7” marked on them;

(b) 5 bags marked with the no “3.5”;

(c) 6 bags marked with the no “1.75”;

(d) 10 ball‑shaped pellets inside a plastic bag marked with the Chinese character “Big”;

(e) 1 bag containing “Ice”;

(f) 12 packets of tablets; and

(g) a Mark Six and a Triple Trio betting ticket with writings on them.

The police also found cash HK$2,160 on him.

5.  When the police asked the applicant what those items found inside his pocket were, the applicant said they were “No. 4, No. 5 and Ice”.  The applicant was then arrested and under caution, he admitted he sold the dangerous drugs for someone nickname “Yu Dan (Fish Ball)” and that he “let them open a store and consume in the room”.  The oral admission made by the applicant was recorded by the police in a police notebook and signed by the applicant.

6.  The police also found a small quantity of dangerous drugs on the dressing table inside the room.

7.  All the dangerous drugs found (including those on the applicant’s person and those found on the dressing table) were seized by the police.  It was an admitted fact that all the dangerous drugs seized were later examined by the government chemist and found to be of the type and quantity particularized in the charge.  The street value was estimated to be about HK$57,090.

8.  The applicant was later interviewed which was video‑recorded.  He admitted during the interview that he had worked for “Fish Ball” for 3 days, selling or distributing dangerous drugs inside the said hotel room to other drug addicts.  In return, he would be paid HK$400 and given 2 pellets of “white powder” per day.  The applicant also gave details as to the price of the packets of dangerous drugs marked with the numbers “7”, “3.5” and “1.75” and the Chinese character “Big”.  As to the writings on the betting tickets, the applicant said they were records of the dangerous drugs still available inside the room after the sale of the dangerous drugs.

9.  It was the prosecution case that the applicant was in possession of the dangerous drugs in question to sell or distribute them to other drug addicts.

Defence case

10.  The applicant denied the police allegation that dangerous drugs were found on his person.  He testified that all the dangerous drugs were on the dressing table.  He admitted to be a drug addict and said that he and his wife had gone up to the room to consume dangerous drug.  The owner of the “divan”, namely “Fish Ball” got away before the police broke in.  He said he was threatened, assaulted and induced by the police to admit all the dangerous drugs belonged to and sold by him so that his wife could be spared by the police and be off the hook.  He thus signed on the notebook and made up answers during the video‑recorded interview.

11.  The defence also adduced a medical report showing injuries sustained by the applicant, saying that the report was consistent with the applicant’s evidence of the assault he suffered at the hands of the police.

Grounds of appeal (on conviction)

12.  In his home-made grounds of appeal against conviction attached to “Form XI”—Notice of Application for Leave to Appeal, and in his further home‑made grounds of appeal dated 21 March 2012, the applicant basically repeatedly asserted his version of the event was the correct one, namely, that he had gone to the hotel room with his wife to buy dangerous drug, and he was not involved in the selling or distribution of the dangerous drugs.

13.  He referred to the following to support his contention:

(a) The fact that there was no mention in the medical report as to how he claimed to have sustained the injuries does not matter as the doctor was there to examine his injuries.  He had already told the court that those injuries were caused by the police.

(b) The money found on him was his own—which he had taken out from an ATM an hour before his arrest.  There should have been a record of such withdrawal;

(c) He went to the hotel room to purchase dangerous drug.  There was a slip found inside the room which recorded that he—whose nickname was “Bald-headed Chiu”—had purchased one gram of heroin at the price of HK$750.

(d) He was not the registered “tenant” of the hotel room.  He did not have a key to that room and he lived elsewhere with his family, which the police knew.

(e) His fingerprints or DNA were not found on any of the exhibits seized from the scene.

(f) He did not have a mobile phone—a necessary item for someone manning a divan.

(g) The police did threaten him and induce him, but they lied and concealed the identity of some officers involved in the operation.

Our consideration of the submissions

14.  We do not think it necessary to deal with all these points raised by the applicant in any detail.  The applicant was in effect asking this court to re‑consider the defence evidence, which is not permissible.

15.  If the defence had wanted to adduce a written record to support the applicant’s contention that he had just withdrawn the money from an ATM shortly before the arrest, then it was up to the defence to do so at trial.  If the applicant had wanted to adduce evidence to show that his nickname was “Bald‑headed Chiu” and that the writing on the paper (which was not exhibited but can be seen in photo no 26 of the photo album (Exhibit P51) was a reference to him having purchased HK$750 worth of dangerous drug, again it was up to the defence to do so.  One must not forget the fact that this applicant had the benefit of being represented by counsel during the trial and there was no allegation of incompetence on the part of his legal representative.

16.  It is clear the applicant did not agree with various aspects of the prosecution case. The respective cases of the prosecution and the defence were summarized by the judge when she summed the case up to the jury.  Ultimately, it was for the jury to decide what the facts of the case were.

17.  The applicant, according to the prosecution case, made full confessions with details as to his involvement in the running of the divan.  The jury had the benefit of viewing the confessions made by the applicant during the video-recorded interview.  The applicant, in giving evidence, made it clear to the jury how he was forced to sign the post‑record of the oral admission; and how he had made up answers during the video‑recorded interview, implicating himself as a result of the impropriety practiced by the police on him, so that his wife could go free.  The jury was fully aware of the case of the defence.

18.  The judge, in her summing up, correctly directed the jury as to how they should deal with the applicant’s confessions.  The judge also gave proper directions to the jury as to the elements of the offence which the prosecution needed to prove against the applicant; the burden of proof and other directions relevant to the particular circumstances of this case: such as a lies direction and a direction relating to the applicant’s admitted drug addiction.  We did not find anything wrong with the judge’s summing up.

19.  The jury, after deliberation, returned a unanimous verdict that the applicant was guilty.  Such a verdict clearly demonstrated that the jury did not find the defence version worthy of belief.  We saw no merits on any of these home‑made grounds of appeal and we dismissed his application for leave to appeal against conviction.

Grounds of appeal (re sentence)

20.  In his home‑made grounds attached to Form X1, as far as the sentence was concerned, the applicant pointed out that although he had previous criminal convictions, he did not have any previous trafficking dangerous drug convictions.  He said he had kept out of trouble for over 30 years and he had to take care of his wife and a 15‑year old son.  He asked for a lenient sentence.

Reasons for Sentence

21.  The judge was made aware of the applicant’s background, including the fact that his previous convictions do not include any trafficking in dangerous drug offences. In coming to the proper starting point, the judge considered the sentence guidelines with reference to the amount of dangerous drugs in this case, i.e the amount of Ice; and the combined amount of heroin and cocaine.  The judge found the amount of nimetazepam insignificant for the purpose of sentencing.  Adopting a “combined approach” of 64.5 grammes of Ice, the judge reached a starting point of nine years.  The applicant was duly sentenced to 9 years imprisonment.

Our consideration of the submissions

22.  In the case of AG v Ching Kwok Hung [1991] 2 HKLR 125, the Court of Appeal set down guidelines for the trafficking of Ice.  Trafficking in 10 to 70 grammes of Ice warrants a starting point of 7 to 10 years imprisonment.  The Ice involved in this case was 53.56 grammes.  Together with two other potent drugs—heroin (9.62 grammes) and cocaine (1.32 grammes)— a starting point of 9 years could not be said to be excessive, let alone manifestly excessive.

23.  The applicant was found guilty after trial, he was therefore not entitled to the usual discount given on a plea of guilty.  There was nothing exceptional in relation to the applicant’s personal backgrounds.  In any event, after being convicted of a serious offence such as trafficking in a dangerous drugs in this case, the personal background of the applicant would not entitled him to a lighter sentence (see HKSAR v Benchamawichit Natacha, unreported, CACC 287/2008 and HKSAR v Wong Chor Chow (黃楚洲), unreported, CACC 533/2004).

24.  The applicant has not been able to demonstrate to us that the sentence of 9 years imprisonment was either wrong in principle or manifestly excessive.  We dismissed his application for leave to appeal against sentence.