HKSAR v. AKHEMETZYANOVA, IRINA

CACC 194/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 194 OF 2011

(ON APPEAL FROM HCCC NO. 21 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon McWalters J (giving the judgment of the court):

1.  The applicant sought leave to appeal against her conviction on 3 May 2011 following a trial before Mrs Justice Bokhary and a jury, of unlawfully trafficking in dangerous drugs, namely 9.08 grammes of methamphetamine hydrochloride (“ICE”) and 80.81 grammes of ketamine, for which she was sentenced to 7 years imprisonment.

The Trial

2.  The applicant stood trial alone on an indictment which contained three counts.  Count 1 was the count in respect of which she was found guilty. It alleged that she unlawfully trafficked in dangerous drugs outside Flat D, 9th Floor, Lai Kei Mansions, 521-523 Nathan Road in Kowloon.  Counts 2 and 3 averred offences in respect of dangerous drugs found inside those premises. Count 2 alleged an offence of possession of small quantities of ICE, cannabis in both its herbal and resin form, and tablets of nimetazepam.  Those dangerous drugs had been found in the living room of the premises.  Count 3 alleged that the applicant had unlawfully trafficked in small quantities of heroin and ICE.  Those dangerous drugs had been found on a man, Kwong, found inside the premises.  Following submissions of ‘no case to answer’ in respect of Counts 2 and 3, on the direction of the judge, the jury acquitted the applicant of those counts.

The prosecution case

3.  The prosecution case was a very simple and straightforward one.  It was that the applicant had been intercepted by police officers in the early hours of the morning of 26 July 2010 in the lift lobby area after she had emerged from the premises, which was then under observation by police officers.  A search of her person revealed a packet of ICE in the left front pocket of her jeans and seven packets of ketamine in her handbag.  Having been arrested for unlawfully trafficking in those dangerous drugs and cautioned, the applicant said “I am not drugs trafficker, these are not mine”.

The defence case

4.  The applicant testified in the defence case.  She said that she was a Russian national but, having married her husband in 2002, she resided in Hong Kong and held a Hong Kong identity card.  She had never been convicted of a criminal offence.  In mid-June 2010, some weeks after she had separated from her husband in May 2010, she had begun cohabiting with Wong Wai Ming in the premises, to which he had given her a key.  She did not pay rent.  She earned about $6,000 a month as a translator of Russian and English.

5.  In the early evening of 25 July 2010 someone she knew as Alex, a close friend of Wong, came and left two audio speakers in the premises.  Then, he left.  He returned at about 11:15 p.m. with a Pakistani boy.  He told her that Wong had been arrested for assault and was in Mongkok Police Station.  Then, the applicant received a phone call on her mobile telephone in which the caller spoke Cantonese.  As a result, she handed the phone to Alex who conducted a conversation in Cantonese.  Afterwards, Alex said that some friends of his would come to the premises.  About 20 minutes later, at about midnight, three men and a girl came to the premises.  One of the men, Kwong, was someone she knew as a friend of Wong’s.  From her position in the bedroom she could see that they were consuming dangerous drugs by smoking in the living room.  However, she did not see the paraphernalia for drug consumption, together with a set of scales, which was found by the police on their arrival openly displayed in the premises.  She did not abuse or own dangerous drugs.  Prior to this occasion she was not aware of the presence of any dangerous drugs or paraphernalia for drug consumption on the premises.  Then, Alex left the premises.

6.  At about 00:20 a.m. a party of police officers entered the premises.  After they had knocked on the door, the girl had opened the door to them.  The applicant was taken to a toilet and a body search was conducted of her by a woman police officer.  No dangerous drugs were found on her.

7.  Later, police officers found dangerous drugs inside one of the audio speakers, which Alex had brought to the premises earlier.  She was ‘framed’ by a police officer, who put packets of those dangerous drugs in her handbag.  Similarly, she was told that ICE had been found in a pocket of her jeans.  That was not true.  She had not left the premises prior to the police officers’ entry and no dangerous drugs were found on her person.

Grounds Of Appeal Against Conviction

Ground 1

8.  By ground 1 of the Amended Perfected Grounds of Appeal Against Conviction Mr Loughran submitted that the judge had erred in permitting the prosecution to present its case on the basis that the applicant’s departure from the premises in possession of the dangerous drugs were acts evidencing or constituting trafficking in the dangerous drugs, whereas the prosecution accepted they were done to avoid detection by the police.  Further, the judge compounded the error by summing-up the case to the jury on the same basis.  Such conduct by the applicant did not constitute or evidence dealing or trafficking unlawfully in dangerous drugs (see the judgment of the Court of Appeal in HKSAR v Yan Suk Yin [2004] 1 HKLRD 677 at page 680, paragraph 5).  Not every act of moving dangerous drugs constitutes trafficking.

Ground 1A

9.  Under this ground it was submitted that the judge had erred in not leaving the alternative verdict of simple possession of the dangerous drugs to the jury.  Mr Loughran acknowledged that after the closing speeches, in light of an assertion by counsel for the prosecution in his speech, the judge had raised with counsel for the applicant whether or not it was appropriate for that alternative verdict to be left the jury.  Although the judge indicated that she was prepared to do so, she erred in acceding to the request of counsel for the applicant not to leave the alternative verdict to the jury.  It was the judge’s duty to place all possible alternative verdicts before the jury, if there was evidence on which a jury could reasonably come to a particular verdict (see the judgment of the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354).

10.  The applicant’s conduct in moving the dangerous drugs was consistent with an intention to avoid detection only and not an act of trafficking.  It was possible that the applicant was a drug consumer herself and that the dangerous drugs found on her were for self-consumption.  Further, the quantity and value of the dangerous drugs found on the applicant were not conclusive of trafficking.  They were not incompatible with possession for self-consumption.  Alternatively, it was possible that the applicant was in possession of the dangerous drugs for her own and the personal use of others.

Ground 2

11.  By ground 2 it was submitted that the trial was rendered unfair because of a speculative, unwarranted and incorrect observation by the judge in the course of her summing-up, namely:

“As to whether the accused might have been innocently and unknowingly involved with people who were dealing in dangerous drugs, ……. ask yourself whether you think that the accused might have been allowed to live in that flat if she was not herself involved in drug trafficking.”

12.  Mr Loughran submitted that by those observations the jury was being invited to draw an inference against the applicant on the basis that the premises were used regularly for drug trafficking, whereas the premise was false, for the only evidence was of drug consumption on the premises in the early morning of 26 July 2010.  In any event, as the boyfriend of Wong it might be the case that, although not a trafficker herself, the applicant was trusted not to inform.  The risk attendant to the judge’s observation lay in the real danger of ‘guilt by association’.

The Submissions of the Respondent

The act of trafficking

13.  Mr William Tam, for the respondent, submitted that the applicant’s reliance on the judgment of this Court in Yan Suk Yin, to support the proposition that removal/disposal of dangerous drugs is not itself a sufficient basis for trafficking in dangerous drugs, is misplaced.  The impugned directions by the judge were described in the judgment of Stock JA, as he was then, as being to the effect that trafficking included (680 F):

“storage that might include storage for oneself and, secondly an attempt to dispose of drugs to avoid detection by the police.”

14.  In addressing the limited specific directions given in that summing-up, the court was concerned to make the point that storage, movement or disposal of drugs possessed for a person’s own consumption did not constitute trafficking.  No such directions were given to the jury in that case.

15.  In the instant case, the prosecution case was that the applicant possessed the dangerous drugs for the purpose of supply or otherwise dealing in them.  The defence case was that the applicant was not in possession of the dangerous drugs: she was not a drug user and did not own any drugs.  On the evidence the issue did not arise.

An alternative verdict: simple possession

16.  Mr Tam submitted that whilst it was clear from the judgment in Ho Hoi Shing that a judge was under a duty to place before a jury all possible alternatives which are open to them on the evidence, nevertheless evidence was required that could be relied on which must not be so incredible or tenuous or uncertain that no reasonable jury could accept it.  Here, there was no sufficient evidence to raise the defence.  The applicant denied that she was in possession of the ICE and ketamine and said that she was not a dangerous drugs user.  She denied that she was removing the dangerous drugs to prevent their detection by the police.  She said that although she wanted to leave the premises she had not done so.

The summing-up: the judge’s observations

17.  Mr Tam submitted that there was merit in the judge’s suggestion as to the approach that the jury might take in their consideration of the applicant’s case, having regard to the fact that the applicant lived in premises in which there was evidence of dealing in dangerous drugs, namely to ask themselves whether, “the accused might have been allowed to live in that flat if she was not herself involved in drug trafficking”.  In any event, the judge had directed the jury on a number of occasions that if she seemed to express a view on the facts they were to reject it, if it did not accord with their view.

A Consideration of the Submissions

What were the issues in the case?

18.  The evidence was very straightforward and the factual scenario found in this case is by no means an uncommon one.  The police keep a residential premises under surveillance, a person is observed about to enter or leave these premises and the police then trigger their ambush and stop and search the person.  Drugs are found on the person but no, or little, other evidence is available that enables the prosecution to establish what the person intended to do with the drugs.  In this situation possession may or may not be challenged but if it is then police fabrication will frequently be alleged.

19.  This was precisely the position in the present case.  Only two issues were raised in the case: firstly, was the applicant in possession of the dangerous drugs contained in the packet of ICE in her jeans and the seven packets of ketamine in her handbag that the police alleged they found on her when they intercepted her outside the premises; and secondly, if so, was she trafficking in those dangerous drugs?

20.  A resolution of the first issue of possession of the dangerous drugs involved a consideration of the police evidence and in relation to the applicant’s evidence a determination of whether it was or may be the truth.  The applicant’s credibility was key to this issue and required the judge to assist the jury in assessing her evidence in a fair, balanced and accurate way.  A resolution of the second issue involved a consideration of the facts established, together with a consideration of what inferences might be drawn from those facts and the application of correct legal principles to the findings of fact thereby made.  Grounds 1 and 1A are concerned essentially with the second issue whilst ground 2 is concerned with the first issue.

Ground 1 – the element of trafficking

21.  Resolution of the trafficking issue is particularly difficult when the primary facts in relation to the act of trafficking are sparse.  It becomes necessary to examine not just the primary evidence but also such reasonable inferences, if any, that can be drawn from it, what was said by the defendant in his or her evidence, how the prosecutor cross-examined the defendant in relation to this issue and how the prosecution presented its case on the issue of trafficking – more especially how the prosecutor invited the jury to find this element proven in his closing address.

22.  However before examining these matters as they arose in the present case, it is worthwhile reminding ourselves of what the Dangerous Drugs Ordinance, Cap 134 says constitutes trafficking and how that definition has been construed through the case law.  The definition of trafficking is found in section 2(1) of the Ordinance and is as follows:

“ ‘trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and “traffic” in a dangerous drug shall be construed accordingly.”

23.  Thus trafficking is defined by reference to acts that are done in relation to the dangerous drug or by simply possessing the dangerous drug for the purpose of doing one or other of these acts.  But making sense of the definition requires putting it in context and the context is that of an ordinance which also criminalises the mere possession of a dangerous drug.  This has come to be known as the offence of simple possession and targets the consumer rather than the trafficker.  Consequently in construing the definition of trafficking the courts have recognized that the various acts listed in the definition are not intended to apply to acts committed by a consumer of drugs for the purpose of his consumption of them.[1]

24.  This distinction was recognized as long ago as 1972 by the Full Court in the case of R v Wong Yin-yu [1972] HKLR 6 where, in discussing the meaning of the words “dealing with” in the definition of trafficking, the Court said at page 13:

“We agree with Mr Litton that the offence of possession of dangerous drugs for the purpose of unlawful trafficking is not necessarily committed by every person who is guilty of unlawful possession: if it were, there would be no necessity for creating a distinct offence. It follows that a person who, having taken unlawful possession of dangerous drugs, has no intention other than to retain them indefinitely is not guilty of possession for the purpose of unlawful trafficking. Even if he intends to handle them from time to time in order to clean the room or to gain access to something which is obstructed by them, he does not thereby become guilty of the more serious offences.”[2]

25.  A similar approach was taken by this court when considering the meaning of the word “procure” in the definition of “trafficking”.  In Attorney General v Sin Chi-keung [1995] 2 HKCLR 1 the Court rejected the argument that a person who procured drugs for his own consumption became, by reason of his act of procuring the drugs, a trafficker in them.  It said at page 5, lines 23 - 33:

“In our judgment the word “procure” in the definition of “trafficking” cannot be read without regard to the context in which it appears. It is plain from the last category of conduct to which the definition refers that possession simpliciter of a dangerous drug cannot amount to trafficking in that drug. Indeed, the offence of simple possession of a dangerous drug is made an offence by virtue of s. 8 of the Ordinance. For possession to amount to trafficking the possessor must have the drug for the purpose of trafficking.

That being so, we are of the opinion that, since possession involves the element of procurement, the legislature must have intended for the purpose of the definition that the word “procure” should bear the meaning of acquiring for a purpose other than that of using the drug for personal consumption, such as supplying it to another or using it in the manufacture of a variant of the drug.”

26.  The same approach was taken by this court in HKSAR v NG Hung Chi CACC 186/2000 (unreported, 12 March 2002) in respect of the storage of drugs.  It said at paragraph 21:

“Yet it cannot, we think, be gainsaid that mere storage is not in itself trafficking. Storage might well be, and very frequently is, but part of an exercise in trafficking to which the storeman is, in one way or another, a party. On the other hand, and by way of example only, the addict who stores a quantity of drugs in a drawer for intended self-consumption is not, by that storage, constituted a trafficker.”[3]

Likewise in respect of weighing and packaging of the dangerous drug – the weighing and packaging must be with a view to the disposal of the dangerous drug.[4]

27.  The present case concerns acts of trafficking that would be within the ambit of the phrase “dealing in or with”.  Ever since Attorney General v Lau Chi-sing [1987] HKLR 703 it has been accepted that the phase “dealing in or with” covers a broad range of activity beyond “importing, exporting, procuring or supplying” but that the activity is still limited by excluding from the reach of the phrase any actions by a consumer of drugs that relate to his consumption of them, be it by storing them, handling them or even discarding them.  What transforms the transporting or conveying of the drugs or storage of them into trafficking in them is the purpose for which the transportation or storage takes place.

28.  The most detailed discussion of the phrase “dealing with” is the Court of Appeal’s decision in HKSAR v Chan Hong [1995 - 2000] HKCLRT 147.  At pages 151 - 152, [10] the court said:

“Secondly, the prosecution must prove beyond reasonable doubt that the defendant trafficked in the drugs. The Dangerous Drugs Ordinance (Cap.134) gives a very broad definition of the term “trafficking”, and the two types of trafficking relevant to the present case are dealing with the drugs and possessing the drugs for the purpose of trafficking. The term “dealing with” is not defined in the Ordinance. Dealing with a drug comprises the act of dealing with it (actus reus) and the intention to deal with it (mens rea). Not all forms of possessing a drug constitute dealing with the drug. Whether a particular form of possessing a drug constitutes dealing with the drug would depend on the act involved and the purpose or objective of the act. Merely carrying a drug while walking along the street is not sufficient to constitute dealing with the drug and hence trafficking in it. Nor can such an act in itself given rise to an inference of dealing with or trafficking in the drug. The surrounding circumstances and other factors have to be considered, such as the defendant’s intention, purpose or objective of carrying the drug, as well as the time and place and the quantity of drugs involved. Generally speaking, to constitute drug trafficking, the act of dealing with the drug must suggest that a third party is involved, for example, carrying or delivering the drug for another person. Another type of trafficking is possessing a drug for the purpose of trafficking. In this connection, the prosecution does not have to prove any act of dealing with the drug or other acts. As long as the defendant is proved to have possessed the drug and have had the intention and ability to use all or part of drug for trafficking purposes, then he is guilty of drug trafficking.” [Italics added]

29.  The culmination of this line of authority was this court’s decision in HKSAR v Yan Suk Yin [2004] 1 HKLRD 677 where the applicant was convicted after trial of unlawfully trafficking in a dangerous drug, namely 113 grammes of ICE.  Police officers, who were maintaining surveillance on premises, broke into those premises after a man was seen to emerge.  The applicant was found in one of the five rooms inside the premises.  The door was locked and she was seen standing on a bed by a window.  A police officer had seen a female throwing an object out of that window.  That object was recovered and found to comprise four bags containing the dangerous drugs the subject of the charge, and a weighing-scale.  The applicant did not give evidence.

30.  In his directions in respect of the ingredient of trafficking the trial judge addressed that part of the definition of “dealing in or with the dangerous drug or possessing the dangerous drug for the purpose of trafficking”.  Issue was taken with the judge’s direction:

“If a person is engaged in an arrangement for storage or storing in a dangerous drug, either for herself/for himself or for another person, then such activity would come within the meaning of dealing in or with a dangerous drug.

Likewise if a person is trying to dispose of a dangerous drug to avoid detection by the police, then it would also come within the definition…”

31.  This Court emphasized the need to construe the word “dealing” to exclude acts by a consumer of drugs to store his drugs or even to discard them to avoid detection, saying at page 680 G-H:

“ ... mere storage without more is not in itself trafficking. If that were so, every addict keeping drugs on the premises intended entirely for his own consumption would also thereby be constituted a trafficker. Nor is the mere fact of throwing drugs away to avoid detection, trafficking.”

32.  However, as the court went on to say, those observations were made in the context that those were the “sole directions” given by the judge on the question of trafficking.  The court noted that the “mere quantity” of the dangerous drugs might have supported a suggestion of engagement in the supply of the drugs to others, but that was not addressed.  Similarly, the jury was not invited to consider whether the applicant was assisting another to store the drugs for the purposes of supply.

33.  As a result of these decisions it is incumbent upon the prosecutor in drug trafficking cases where there is little evidence other than bare possession of the dangerous drugs to focus on the element of “trafficking” so that he is in a position to explain clearly to the judge and jury how he intends to prove this element and on what basis he will invite the jury to find this element proven.  There may be more than one basis but, if so, they should he identified.  Glossing over these questions is only likely to lead to uncertainty by the judge as to how to direct the jury and confusion by the jury as to how they should satisfy themselves as to this element of the offence.

34.  The question is whether, in the context of this trial, the jury must have understood trafficking in the sense in which we have explained it.

35.  The starting point to answering this question is a consideration firstly of the prosecutor’s cross-examination of the applicant and secondly of the prosecutor’s closing address to the jury.  In this way a picture can be obtained of how the prosecution presented its case to the jury on the element of “trafficking”.

36.  Turning firstly to the prosecutor’s cross-examination of the applicant. The judge accurately described it in her summing-up when she reminded the jury of the suggestion put to the applicant in cross‑examination by the prosecution, but denied, namely that:

“she wanted to leave because she thought that Wong’s arrest would lead to the police visiting his home, Flat D, and she wanted to be out of the flat together with the dangerous drugs in which she was involved, before the police arrived.”

37.  True it is that counsel for the prosecution suggested specifically that the ICE and ketamine found on the applicant’s person outside the flat, was hers, but it is clear that the suggestion was made in the context of the applicant being an unlawful trafficker in dangerous drugs, there being evidence of that from the inferences to be drawn from the quantity and value of the dangerous drugs and the manner in which the ketamine had been packed, namely in seven packages of almost identical weight.  The prosecution said that she was moving the stash of dangerous drugs, in which she was trafficking, to a safer place anticipating the arrival of the police.  In so doing, she was dealing in the dangerous drugs.

38.  There can be no doubt that in his cross-examination of the applicant the prosecutor made it clear that that he was asserting that her possession of the drugs was not related to her consumption of them.  Indeed he did not challenge her claim that she was not a drug user.

39.  The prosecution’s case that they were not possessed by the applicant for self-consumption is equally clear from what the prosecutor said in his closing address, which was as follows:

“Now, so far as the 1^st count, the charge the prosecution bring is one of trafficking in dangerous drugs, and before you could convict the accused of that charge, you would have to be satisfied so that you are sure that the accused had those drugs in her possession for the purposes of trafficking in them. That is to say that there is a burden on the prosecution to satisfy you, the jury, that those drugs were not being carried by her for her own consumption or use.

Now, the prosecution case is that the accused had those drugs with her for the purpose of supplying or otherwise dealing in them. Indeed, members of the jury, you may think that if the accused was carrying those drugs in the lift lobby, it most certainly was not for the purpose of self-consumption.” (Emphasis added)

40.  Turning now to the judge’s directions.  Unfortunately, on the issue of “trafficking” the judge’s directions were somewhat sparse.  She recited the definition of trafficking and explained quite shortly the concept of possession.  Then, after explaining what was meant by “unlawful”, the judge concluded her directions on the law in relation to the offence by saying:

“That members of the jury, tells you what you need to know, for the purpose of trying this case, about the meaning of unlawful trafficking in dangerous drugs.”

These purely legal comments contained no reference at all to the need of the jury to exclude the possibility that the applicant had the drugs in her possession for her own consumption and nor was any such direction subsequently given.

41.  Thereafter the judge proceeded to a discussion of the evidence and after doing so directed the jury on how they should approach the two issues of possession and trafficking and in respect of the latter issue said:

“If you feel sure that those dangerous drugs were found in the accused’s handbag and in her jeans pocket, then you will have regard to their value, namely HK$17,754 and how they were packaged, namely in eight plastic bags.

Having regard to the value of those dangerous drugs and the way they were packed, it is open to you to conclude that the only reasonable inference is that they were for the purpose of supplying or otherwise dealing in or with the same, in other words, trafficking.

And having regard to all the circumstances, it is open to you to conclude that they the only reasonable inference is that the accused had them in her possession for that purpose in that she had them in her possession for that purpose, in other words, that she was trafficking in them; and you would be entitled to find her guilty of unlawful trafficking as charged under Count 1.”

42.  The judge then described the prosecution case in the following way:

“The prosecution’s case is that the Count 1 drugs, of street value of $17,754, were for drug dealing, and that the accused was knowingly dealing with them in the course of a drug dealing operation.” [Italics added.]

43.  After commenting on the prosecution and defence cases the judge then gave the following further direction on trafficking:

“To convict the accused as charged, you must feel sure that she was unlawfully trafficking in these dangerous drugs. If you feel sure of that, then you will convict her even though you do not know in precisely what way she was unlawfully trafficking in them and even though you do not know what other person or persons may also have been involved in the unlawful trafficking of them.”

44.  It was when she was explaining how the prosecution said the applicant was trafficking that the directions became less clear.  Firstly she referred to possession; secondly to the inference of trafficking and then said:

“Thirdly and finally, it is the prosecution’s case that the only reasonable inference is that by knowingly putting these dangerous drugs, of that value and so packaged, into her handbag and jeans pocket and taking them out of the flat, the accused was dealing in them so as to have been unlawfully trafficking in them.”

45.  This was very similar to the way the prosecutor expressed himself in his closing speech when he said that “the act of taking those packets of dangerous drugs from Flat D out into the lobby …. is evidence of itself from which you could infer that she had those drugs with her for the purpose of supply or otherwise dealing in them”.

46.  Though a small point, it seems to us that what the facts of this case reveal is really a dealing with rather than a dealing in the drugs.  But more importantly the judge’s description of the prosecution case on the key element of trafficking fails to clarify what the dealing is and fails to emphasize that, whatever the “dealing with” is, that “dealing with” the drugs must be a purpose other than one related to the applicant’s future consumption of them.  This lack of clarity is what has given rise to the first ground of appeal with Mr Loughran seeking to portray the prosecutor and the judge as saying that the mere taking of the drugs out of the flat was sufficient to constitute trafficking in them.

47.  However, it seems clear to us that what the prosecutor and judge were trying to articulate is that the applicant was dealing with the drugs by transporting them for a purpose other than her own consumption of them.  She may have been transporting them for the purpose of supplying them to others, conveying them to another place for safe concealment and storage there for later sale by herself or another.  The jury was not required to identify the purpose but what they did have to satisfy themselves is that for whatever reason the applicant was transporting the drugs it was not for the purpose of enabling her, at some future time, to consume them.

48.  The prosecutor very clearly spelt out in his closing address the requirement that in order to find that the applicant trafficked in the dangerous drugs the jury must be satisfied that she did not have possession of them for her own consumption.  Though the judge did not emphasise this point with the same clarity we are nevertheless satisfied that that was the thrust of her directions viewed as a whole and that the jury could not have been in any doubt as to the law.

49.  Accordingly, it is clear that the special circumstances obtaining in Yan Suk Yin are not relevant to the instant case.  In the result, we are satisfied that the prosecution did not present its case nor did the judge sum up on the basis that the mere fact of the applicant’s departure from the premises, in possession of the dangerous drugs, were acts evidencing or constituting trafficking.  Importantly, the jury was directed to have regard to the issue of value and quantity of the dangerous drugs and the packaging of the ketamine in considering the issue of unlawful trafficking in the dangerous drugs.

Ground 1A:  Simple possession

50.  This ground of appeal asserts that the alternative verdict of simple possession should have been left to the jury for two reasons.  Firstly because the jury might have viewed the applicant’s possession of the drugs as being for her own consumption given that:

(i)  The applicant had just emerged from a flat which contained drug paraphernalia; and

(ii)  The evidence of trafficking was essentially only the quantity and packaging of the drugs and this was insufficient to entitle the jury to infer trafficking.

51.  Secondly because the jury might have taken the view that the drugs in the applicant’s possession were being held by her for consumption by herself and others.

52.  As noted earlier, the judge raised with counsel the issue of an alternative verdict of simple possession only after closing speeches.  She said that she did so only because counsel for the prosecution had raised it in his closing speech.  She said that hitherto it had not been the prosecution case.  Noting that it had not been the defence case in the trial nor had it been addressed in the defence closing speech the judge indicated that she would leave that verdict to the jury if defence counsel wished her to do so.  Defence counsel said that he had not addressed the issue in his speech because, “it had never been my understanding that has ever been the prosecution case.”  He said that he preferred the judge not to leave the alternative verdict.  In the result, as she had advised counsel, the judge did not leave the alternative verdict of simple possession to the jury.

53.  We are satisfied that defence counsel’s reaction to the judge’s enquiry was perfectly understandable.  The prosecution case was that the applicant was guilty of unlawful trafficking in the dangerous drugs and the defence had addressed that issue only.  No tactical decision had been taken not to mention a verdict on the lesser offence of simple possession, lest it “detract from a more stark choice between a conviction on a more serious charge and an acquittal”.  (See the judgment of the Privy Council delivered by Lord Clyde in Von Starck v The Queen [ 2000] 1 WLR 1270 at 1275 G ‑ H.)

54.  The reference by counsel for the prosecution in his closing speech to the applicant being guilty of the offence of possession of dangerous drugs in respect of the ICE and ketamine found on her and which prompted the judge to raise with counsel the possibility of leaving simple possession to the jury, has to be understood in context.  The prosecutor was only referring to ‘possession’ as one of the ingredients of the offence of unlawful trafficking in a dangerous drug before informing the jury that they would have to be satisfied that the applicant possessed the dangerous drugs, “for the purposes of trafficking in them” and “… not being carried by her for her own consumption or use”.  The prosecutor was not informing the jury of an alternative verdict of simple possession or inviting them to deliberate on such a verdict.  When the judge raised it with counsel the prosecutor did not respond.  From his silence on the matter it is obvious that he did not intend that the jury should have the option of a verdict on simple possession placed before them.

55.  The prosecution case that the applicant had been intercepted outside the premises and found, after a search was conducted, to have in her jeans pocket and in her handbag a packet of ICE and seven packages of ketamine respectively was repeatedly denied by the applicant in her evidence.  It was her case that she was not in possession of the dangerous drugs, she was not a drug trafficker and she did not own the dangerous drugs and was not a drug user.

56.  As was made clear in the judgment in the Court of Final Appeal in HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 354, an evidential basis is required before an alternative verdict is to be left to a jury (page 361 H - I, paragraph 14):

“Not every possible alternative, however inconsistent with or unsupported by the evidence has to be placed before the jury. An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on the alternative.”

and at page 362 C-D, paragraph 15:

“… the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted that; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could come to the alternatives verdict.”

57.  We are satisfied that that applies in the applicant’s case.  Not only was it not the applicant’s case that she was in simple possession of the dangerous drugs but also the quantity of the dangerous drugs, namely over 80 grammes of ketamine and 9 grammes of ICE, its value ($17,754), in the context of the applicant’s evidence that she earned about $6,000 per month, together with the nature of the packaging of the seven packets of ketamine were overwhelmingly compelling factors to the contrary.  There was no evidential basis upon which it was appropriate to leave the alternative verdict of simple possession of dangerous drugs to the jury.

58.  The same position applies in respect of the possibility that the jury might find that the applicant’s possession was a joint possession or a possession as agent for others.  There was no evidence before the jury which would have entitled them to make either of these findings.  To have done so would require them to enter the realm of speculation and conjecture.

59.  Mr Loughran further argues that the evidence was not conclusive of trafficking and for this reason the alternative verdict of simple possession should have been left to the jury.  He relies upon the Court of Final Appeal decision of Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198 where the facts were very similar to those of this applicant.  In Chan Chuen Ho the prosecution case was that the appellant was stopped as he was exiting from a building and on being searched was found to be in possession of a key to residential premises in the building in which drugs were found.  A search of the appellant revealed the presence of seven plastic bags containing 197.17 grammes of a mixture containing 37.28 grammes of heroin hydrochloride.

60.  The appellant claimed that he had rented the room in which the drugs had been found but had not yet moved in and was still living with his mother in Shatin.  He claimed he was not arrested outside this building, the police story was a complete fabrication and that the police had planted the drugs on him.

61.  The Court of Final Appeal allowed the appeal on the basis of a misdirection on the element of trafficking which had the effect of reversing the onus of proof.  In deciding not to apply the proviso the Court of Final Appeal said that it was not inevitable that the jury would have convicted the appellant of trafficking and there remained the possibility that the jury might have convicted of simple possession rather than trafficking.

62.  But saying that, for the purposes of the proviso, it was not inevitable that a jury would convict is quite different from saying that, as a matter of law, they could not convict.  Here the evidence was such that it was open to the jury to draw an inference adverse to the applicant that she had the drugs in her possession for the purpose of trafficking.

63.  The sort of evidence relied on by the prosecution in this case has long been accepted as sufficient to found in inference of trafficking.  In discussing the distinction between “dealing in” and “dealing with” the Full Court in R v Wong Yin-yu [1972] HKLR 6 said that “dealing in” has the connotation of a commercial transaction but not so for “dealing with” and went on to explain the process of drawing inferences based upon the value and volume of the drugs.  It said:

“We agree that something more must be shown than the sort of handling which is inseparable from possession.  However, a jury is entitled to have regard to the realities of life and, in the absence of any explanation, to assume that a person who has possession of a very large quantity of drugs does not intend to keep it as a collector’s item.  We cannot agree that a jury is not entitled, in the absence of evidence as to the precise value of a quantity of dangerous drugs, to take cognizance of the notorious fact that salts of morphine can be sold illicitly at a very high price.  Where the quantity of drugs is large enough (as it clearly is in this case) the jury can assume that it is to be disposed of to others.  Such disposal will amount to a “dealing in” if the possessor is party to a sale or similar transaction but only to “dealing with” if it is not.  In either event the purpose for which the goods are possessed is “trafficking”.”

64.  On the evidence presented by the prosecution the jury was entitled to draw the inference, as the only reasonable inference, that the applicant had possession of the drugs for the purpose of trafficking in them.  Such trafficking would have to be a “dealing in or with” the drugs and most likely an unidentifiable act of “dealing with” them.

Ground 2:  The judge’s observation on the position of the applicant

65.  The second ground of appeal concerns an observation by the judge which it is said contained within it the potential to prejudice the applicant in three different ways.  The judge’s comment was as follows:

“As to whether the accused had been or might have been innocently and unknowingly involved with people who were dealing in dangerous dugs, you will, using your commonsense and sense of realism and approaching the case in a fair-minded way, ask yourselves whether you think that the accused might have been allowed to live in that flat if she was not herself involved in drug trafficking”

66.  Of this observation the applicant complains that:

(i)  it portrays the flat where the applicant lived as a place where drug trafficking was regularly carried on and this is contrary to the evidence;

(ii)  based upon the incorrect portrayal in (i) above, it suggests the applicant would only be allowed to live in the flat if she was also a trafficker and given her relationship with the tenant there may have been other reasons for her being allowed to live there; and

(iii)  it makes an unwarranted assumption that mere association with the traffickers is sufficient basis to show that the applicant herself was engaged in drug trafficking

Complaints (ii) and (iii) flow from (i).  Consequently the first issue in respect of this observation is whether it is premised upon a factually incorrect portrayal of the evidence.  It is quite clear that there was no evidence in the prosecution case of any earlier incidents of drug trafficking or drug consumption.  Attempts by the prosecutor to elicit such evidence in cross‑examination of the applicant were unsuccessful as she rejected all his suggestions to the effect that her flat was a “drugs nest”.

67.  The reality was that the only evidence of what was taking place in the flat came from the applicant.  True there was evidence from the police officers who conducted the search of the flat and seized the items they found there, but as to how those items came to be in the flat and how long they had been there were matters spoken to only by the applicant.  Of course, the jury could disbelieve her evidence, as they were invited to by the prosecutor, but if they did so that would leave these questions unanswered and with no evidence to provide the answer.

68.  Notwithstanding the complete lack of evidence of past drug use in the flat, the prosecutor, in his final submission to the jury, said:

“After all, she had just closed the door of flat D, which, as you may have little difficulty in accepting, was her home at the time, the only home that she had, and what is more, it was a drugs nest where all the paraphernalia for ingesting and inhaling the sort of dangerous drugs found on her had been left there on the wooden board ready for use.”

Later in his final address he again used language that implied past use of the flat for drug activity.  He said:

“Given the drug culture that was going on in that flat at the time ….”

By characterising the flat in the way he did the prosecutor misled both the judge and the jury as to the evidence.

69.  If the judge was merely setting out the prosecution case then she should have realized that it was not an accurate portrayal of the evidence and that it fell to her to correct the false impression that this inaccurate portrayal may have left in the minds of the jury.  Given the state of the evidence it would have been impermissible for the jury to have inferred past use of the premises for either drug trafficking or drug consumption and this was something on which the judge should have directed the jury.  Unfortunately in this case not only did the judge not correct the prosecutor’s misrepresentation of the evidence, she actually compounded it by appearing to lend her support to it in the comment that she made.  Comments by a judge are permissible, within recognized boundaries, but the main problem with the comment in question was that it was based on a false premise presented as fact.

70.  Even if there had been evidence of past drug use at the flat, it still would have been quite wrong for the judge to suggest to the jury that they could infer from the fact that the applicant, as the co-habitee of the tenant, was allowed to live in the flat, only because she was party to the drug trafficking being carried on there.  As Mr Loughran pointed out, as the girlfriend/cohabitee of Wong, it was quite possible that she was trusted to live in the premises, albeit that she herself was not involved in drug dealing or the consumption of dangerous drugs.

71.  Nevertheless, if the comment of the judge can properly be characterized as only a personal observation then it could arguably be cured by the repeated direction which the judge gave the jury, in clear and unambiguous terms, that the evidence was for them and them alone and if they disagreed with anything she, the judge, said in respect of the evidence then they must reject what she said. Furthermore, given that the key issue in the case was the applicant’s credibility, can it be said that this comment would have significantly impacted upon the jury’s assessment of the applicant’s evidence.

72.  In answering these questions the first step is to understand the nature of the applicant’s defence.  That will then enable the judge’s observation to be placed properly in context.

73.  The applicant’s defence was quite a simple and straightforward one.  She is not a drug trafficker or drug user.  She had not seen drugs in the flat before the night she was arrested.  The drugs in the flat that night were brought there by a friend of her boyfriend and this friend had his own key to the flat.  Finally she says she was inside, not outside, the flat when she was arrested and she did not have on her or in her handbag the drugs that the police claim they found in her possession.

74.  The judge summarised the defence case as follows:

“The defence case can be seen, you may think, to involve two things. First, the police witnesses who said that the Count 1 dangerous drugs were found in her handbag and jeans pocket were lying. Secondly, she was innocently and unknowingly mixed up with people who were dealing in dangerous drugs”

This summary described the defence case as being composed of two limbs.  What becomes apparent is that when the judge subsequently made her comment she was in fact referring to what she describes in this passage as the second limb of the defence.

75.  This summary has to be read together with the judge’s comments on the applicant’s testimony.  The judge said:

“You will of course consider the accused’s testimony without being, on the one hand, cynical or, on the other hand, in a manner lacking commonsense or realism. One of the matters you will consider is her testimony of wanting to leave the flat upon hearing from Alex that Wong had been arrested for assault because it seemed that Wong was not the man she thought he was and because of Wong’s arrest and trouble.

Well, for a woman to leave a man because he was not the man she thought he was and because of Wong’s arrest and trouble is understandable. But, on the other hand, the accused’s own testimony was that Alex had told her that he did not know the details. Why would the accused immediately conclude, without finding out more, that Wong was not the man she thought he was and because of Wong’s arrest and trouble?

The prosecution’s suggestion as to this is that the accused knew what sort of man Wong was, that he was the sort of man far worse than a man arrested for assault; that she knew that he was involved in dangerous drugs; and that she wanted to get away with the dangerous drugs before the police came to Wong’s home as she feared they would once he had been arrested.”

76.  In these paragraphs the judge raises queries about the credibility of the applicant’s explanation for why she wanted to leave the flat and in doing so refers to what the prosecution was suggesting was the real reason.  The prosecution suggestion that the judge refers to raises the issue of the applicant’s boyfriend being involved in drugs, implicitly asserting a past history of drug activity and a knowing involvement by the applicant with the boyfriend in that activity.  This reflects what was put by the prosecutor in his cross‑examination of the applicant that this flat was a drugs nest, that the boyfriend was involved in drug trafficking and that in leaving the flat with the drugs the applicant was rendering some form of assistance to the boyfriend in his drug trafficking activities.  As previously mentioned this cross-examination is described by the judge but at no stage does she ever draw attention to the lack of evidence to support these assertions, thereby leaving to the jury an unbalanced representation of the state of the evidence.

77.  Such evidence as there was came from the applicant’s evidence and the discovery of paraphernalia for drug consumption.  The applicant testified that on the material night Kwong, a person she knew to be a friend of Wong, had arrived in the premises together with three other persons and set about consuming dangerous drugs openly.  The applicant testified that she had not seen the paraphernalia for drug consumption on the premises before and was unaware of its provenance.  There was no evidence at all of any earlier dealing in or dealing with dangerous drugs in the premises.

78.  Furthermore, the judge’s comment that is the basis of this ground of appeal lends support to the idea, subsequently expressed by the judge when discussing the applicant’s evidence, that the boyfriend was involved in drug trafficking from this flat and that the applicant was assisting him.  This factual assumption, which is not an inference that was available on the evidence, links the impugned comment of the judge with the jury’s assessment of the applicant’s evidence.

79.  By placing the observation in context it becomes readily apparent that it is not a judicial aside on a relatively unimportant aspect of the evidence. It is a statement made in the course of a structured summing-up which is intended by the judge to assist the jury in determining the credibility of the applicant’s claim that she was innocently and unknowingly caught up in whatever drug activity was taking place in the flat.

80.  Now, with a better understanding of the context, it bears repeating the observation of the judge.  She said:

“As to whether the accused had been or might have been innocently and unknowingly involved with people who were dealing in dangerous drugs, you will, using your commonsense and sense of realism and approaching the case in a fair‑minded way, ask yourselves whether you think that the accused might have been allowed to live in that flat if she was not herself involved in drug trafficking.” (Emphasis added)

81.  The first italicized part of the sentence with the reference to the applicant being “innocently and unknowingly involved with people” is a direct link to the second limb of the applicant’s defence.  The words “you will” are unusually strong and to all intents and purposes instruct the jury to ask the question that follows.  As to the question that follows, it is clearly intended by the judge to be used by the jury as a tool for them to employ in assessing the credibility of this limb of the applicant’s defence and this is undoubtedly how the jury would have understood it.  But the question is phrased so as to invite a negative answer to it - an answer that is cloaked with the legitimacy of having been arrived at by the jury using its “commonsense and sense of realism and approaching the case in a fair‑minded way”; words which the judge employed when earlier directing the jury not to shrink from their duty of convicting the applicant if, “after a fair‑minded, realistic and commonsensical consideration of the whole of the evidence” they felt sure that the applicant was guilty.  Finally, and most significantly for present purposes, all of this is based on an erroneous representation of the evidence.

82.  It is apposite at this point to refer to the comments of the Court of Final Appeal in Lin Pin Keung v HKSAR (2005) 8 HKCFAR 52.  At page 60 B – E (paragraphs 26 – 27) Chan PJ said:

“26. However, what a judge says to the jury is very often the last they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury and must avoid the use of sarcastic, unnecessary, inappropriate or even extravagant language …..

27. If a trial judge chooses to make adverse comments on the defence, it is important that the facts on which the comments are based are correctly stated.”

83.  In our view what makes the judge’s comment so troubling are two matters.  The first is that it is premised on a factual inaccuracy which the judge should have corrected but by her comment appeared to lend legitimacy to. Secondly, it allows, if not encourages, the jury to engage in an impermissible line of reasoning and draw inferences which were not open to them to draw.  It is no sufficient answer to say that this is merely a personal observation of the judge which the jury well knew they could ignore.  Given the importance of the comments to the applicant’s defence, the directory language employed by the judge and the impermissible line of reasoning founded on a factual inaccuracy which the judge invited the jury to employ, we are of the view that it is impossible to be confident that the jury’s decision-making process was unaffected by the judge’s comment.

Conclusion

84.  For the reasons set out above, we are satisfied that there is merit in the application for leave to appeal against conviction.  Accordingly, we grant the applicant leave to appeal, allow the appeal and set aside the conviction. At the hearing of the appeal the parties made submissions on the issue of retrial. After taking into account all relevant considerations we are of the view that it is in the interests of justice that the applicant be retried on a fresh indictment and we so order.

85.  An issue arises in respect of the applicant’s detention pending the retrial. Given the seriousness of the offence and the apparent strength of the evidence, the order we make is that she be remanded in custody until the date of the fresh trial.  This order is, however, made without the benefit of submissions so that it is open to the applicant, if so advised, to make an application.

[1] However this has not been the approach of this court in relation to the act of exporting – see Attorney General v Lau Chi-sing [1987] HKLR 703, a majority decision containing a dissent by Power J.  In Attorney General v Sin Chi-keung [1995] 2 HKCLR 1 the Court of Appeal explained how it justified its different construction for the acts of exporting and importing by saying at page 5, lines 4 – 10:

“The export of dangerous drugs from Hong Kong has international implications.  And the import of dangerous drugs into Hong Kong adds to the pool of drugs available for distribution here.  Clearly the legislature intended to make a distinction between importers and exporters of dangerous drugs on the one hand and those persons who obtain them within Hong Kong for personal consumption in Hong Kong on the other.”

[2] This decision was applied by the Court of Appeal in R v Wong Wing Yui & anor [1990] 2 HKC 567.

[3] See also R v Diu Lap-nin CACC 1439/1983 (unreported 26 January 1984) where the Court of Appeal said at page 8:

“As a matter of interpretation, the phrase “dealing with the dangerous drug” is sufficient, in our view, to cover any activity which can be said to be related to, or connected with the dangerous drug, including storage for subsequent disposal.”

[4] See R v Yan Kwok Kwong CACC 511/1993, unreported, 25 August 1994.