HKSAR v. CHOW CHI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 773
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted in the High Court of trafficking in a dangerous drug. The trial was before Bokhary J. and a jury. The drug involved was 19.21 grammes of methamphetamine hydrochloride or ice. He now applies for leave to appeal against conviction.

2. The applicant admitted at the trial that he was intercepted and searched by a police officer at the Circle K convenience store in Ka Wai Estate Hung Hom in the early hours of 2nd April 1997. The officer found on him 5 plastic bags containing 25 small bags and the drugs in question were contained in these bags. The applicant admitted he was a drug user.

3. The prosecution case was the applicant had the drugs on him for trafficking but his defence was that the drugs were for his own consumption.

4. The prosecution called two expert witnesses. Government Chemist Dr. Poon Lai Leung gave evidence that the quantity of ice in a unit dose ranged between 0.07 grammes and 0.4 grammes and was unlikely to exceed 0.7 grammes and even more unlikely to exceed 1 gramme. On that basis, he said, 19.21 grammes of "ice" could produce from a minimum of 25 unit doses to a maximum of 270 unit doses. He also said that the minimum lethal dose for an adult is one gramme. Chief Inspector Ma of the Narcotic Bureau gave evidence on the average price per gramme of "ice" and he said that the total value of the quantity in question could be as much as $7,936. Relying on their evidence and the quantity of drugs, the prosecution said the applicant had the quantity of "ice" on him for trafficking and not for his own consumption. The applicant gave evidence of his pattern of consumption of "ice", his wages and other sources of income to show that the quantity of "ice" was for his own consumption and he could afford to pay for them.

5. The only ground of appeal in the perfected grounds of appeal is that the conviction is unsafe and unsatisfactory. Mr. Delaney for the applicant put up two reasons for saying so.

6. First he says that prosecuting counsel made intemperate and improper submissions in his final address and the trial judge didn't intervene and prevent such submissions from being made and had failed to rectify the damage which might have caused to the applicant by such submissions. He has also submitted that the judge's summing up is insufficient to ensure the jury would not act on such intemperate submissions.

7. On this, Mr. Delaney refers to several areas in prosecuting counsel's submission. The first is prosecuting counsel's reference to the effect that drug users frequently became drug pushers. Mr. Delaney says this is damaging to the applicant who was a drug user.

8. The second is that prosecuting counsel had suggested that drug users buying drugs in bulk would get a discount which would result in the drug user getting free drugs. Mr. Delaney says this reference is contrary to the evidence of the applicant and is not supported by evidence other than that of the Chief Inspector.

9. The third is prosecuting counsel's reference to the applicant started smoking cannibis and then graduated to taking "ice" and this is contrary to the evidence of the applicant.

10. Mr. Delaney relies on the authority of R v Wu Chi Wai [1995] Criminal Appeal 680. In that case prosecuting counsel remarked that drug users were likely to become traffickers and suggested that an inference of drug trafficking could be drawn from possession of a portable phone. Prosecuting Counsel also speculated on the cost of the dangerous drug and suggested that it might be more economical for a drug user to traffick in dangerous drugs and make small purchases as and when he needed it. No attempt was made by the trial judge to rectify the damage which might have occurred from such submissions. The drug expert's evidence on how long the quantity involved would support a drug user was not conclusive. The Court of Appeal concluded that the conviction was unsafe and unsatisfactory.

11. Mr. Delaney submits that the present case is no different from Wu Chi Wai.

12. The relevant passages in prosecuting counsel's submission have been referred to us and have been read out in full. In our opinion, the passages complained of, as a whole, cannot be said to have suggested that the applicant being a drug user was likely to be a drug trafficker. The matters suggested there are part of the general observations in prosecuting counsel's final address. The prosecution case is that the applicant took to trafficking because he could not afford his drug consumption. They are matters which are matters of common life in Hong Kong of which a jury would have knowledge and understand.

13. In the light of the prosecution case, these remarks although forceful have not gone beyond the legitimate mark. It is difficult to see how these remarks could have affected the jury in their verdict.

14. In any case, the judge in her summing up had directed the jury in these terms:

"... You have heard counsel addressing you on the weight and effect of the evidence. Do give careful consideration to their speeches which you have very recently heard, which you will remember clearly and which I need not repeat. But what each counsel has urged upon you as to the facts is ultimately for you to accept or reject as you consider appropriate. You are the sole judges of facts."

15. Later when she directed the jury on their approach in reaching their verdict, the judge said:

"The prosecution has made a number of points. But I direct you that there is only one basis on which you may - note that I said may and not must - convict the accused of trafficking as charged. The basis is as follows. If looking at the amount of dangerous drugs involved, their value and the way they were packed that is in 25 packets, you consider the only reasonable inference in the circumstances to be that those drugs were possessed by the accused for the purpose of supplying or otherwise dealing in or with them, in other words, trafficking in them. If you consider that to be the only reasonable inference, then you are entitled to convict the accused of trafficking as charged. If you do not consider that to be the only reasonable inference, then you should convict him only of the alternative offence of simple possession."

16. The judge had thus clearly directed the jury to decide the case on the evidence before them and it was for them to decide the facts whatever suggestions were made by the prosecution. We do not think that the complaints made in respect of prosecuting counsel's submissions are sufficient grounds for the conviction to be interfered with.

17. The nature of the experts' evidence, is the second reason Mr. Delaney gave in support of the ground of appeal. Mr. Delaney complains that Dr. Poon had relied on statistics from the United States of America which were 10 years old and a confusing method of analysis of more recent statistics to reach the average dosage. He further complains that the variation between 25 unit doses and 270 unit doses is so great that the evidence was of little assistance to the jury.

18. Based on the United States statistics, the average dose is 0.07-0.1 grammes and based on data collected in Hong Kong between 1994 and 1996, it is 0.07-0.4 grammes. Although a gap of 10 years existed between these figures, they are not much different. The age of the United States statistics does not affect the conclusions. The conclusions are clear. Dependent on the quantity in a unit dose, starting with 0.07 grammes a unit dose, the number of doses that could be made out of 19.21 grammes would be 270 in the maximum and down to 25 if each unit dose is 0.8 grammes. The doctor was unable to say how many doses and in what dosage a drug user would require on a daily basis as it depends on the degree of addiction and the person of the user and there would be wastage. In any case, his evidence was that a dose of 1 gramme would cause death.

19. It was for the jury to decide from such evidence, together with the evidence of the value of the "ice", the evidence that the "ice" was contained in 25 packets packed in 5 plastic bags and the evidence of the applicant, whether the quantity of "ice" was for trafficking or for the applicant's own consumption. The verdict of guilty of the jury clearly indicates that the jury had rejected the version of facts of the applicant and had accepted, whether the quantity of 19.21 grammes of "ice" was divided into 25 unit doses or 270 unit doses, they were not for the applicant's consumption but for trafficking.

20. In those circumstances, the verdict cannot be said to be unsafe and unsatisfactory. The application for leave to appeal against conviction should be refused.