HKSAR v. YU WAI NANG

CACC 383/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 383 OF 2013

(ON APPEAL FROM HCCC 305/2013)

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the reasons for judgment of the court):

1.  On 10 October 2013, after trial before Deputy Judge Geiser and a jury, the applicant was convicted of one count of ‘trafficking in a dangerous drug’ involving 18.52 grammes of a crystalline solid containing 18.27 grammes of methamphetamine hydrochloride (“ice”)[1]. He was sentenced to 7 years and 6 months’ imprisonment. Having been refused legal aid on the merits (23 December 2013), and also the free legal service of the Hong Kong Bar Association (3 June 2014), the Applicant sought leave to appeal against his conviction in person. (His application for leave to appeal against sentence was dismissed upon his notice of abandonment dated 30 January 2014.)

THE PROSECUTION CASE

2.  At about 1 am on 28 February 2013, the applicant who was pushing a bicycle at the junction of Portland Street and Prince Edward Road was stopped by the police and found to have in his left front jeans pocket 13.94 grammes of ice wrapped in tissue paper.  In a subsequent search at Mong Kok Police Station, he was found to be in possession of another quantity of ice in two plastic bags (2.19 and 2.39 grammes) in a black colour pouch that was hidden inside the waistband of his jeans.  On both occasions, under caution, the applicant stated that the drug was for his own consumption. The same explanation was repeated in a video recorded interview in which the applicant detailed how as an addict he had just purchased his month’s supply of ice for $1,650.

3.  Police witnesses accepted that prior to his interception, the applicant was not seen to have met or passed by any person. It was accepted that the applicant had told the officer stopping him that he was a construction site worker.  Nothing suspicious was found in the applicant’s home search.  It was the expert evidence of the third prosecution witness (a Detective Senior Inspector) that, at the time, the average price of ice was $734 per gramme, and the aggregate value of the drug concerned was $13,601.  It was the expert evidence of the fourth prosecution witness (a consultant psychiatrist) that chronic ice-users commonly consumed 250 milligrammes to 1 gramme of the substance a day.

4.  It was the prosecution’s case that the applicant’s explanation of self-consumption was untrue and that he was having possession of the drug for unlawful trafficking.

THE DEFENCE CASE

5.  The applicant did not challenge the admissibility of his video recorded interview.  He gave evidence that is consistent with it.  The following is a summary of what he said by the trial judge:

“ …. he had been doing decoration/construction work. He started at 11 pm and went on until 12.30 am the following morning, the 28th. He had been working as a construction site worker, he said, for three months. You have a copy of his safety card, Exhibit D1, which he produced. The site he was working on, he said, on the 27th, was opposite Pei Ho Street markets in Sham Shui Po and he cycled there from his home in Yau Ma Tei.

     That night, he said, he earned between $250 and $300, but he did not get paid immediately, you will recall. However, he said that his boss did pay him $2,000 cash for work which he had done previously so, he said, at the time, he had the $2,000 cash on him ….

     The defendant told you that he is a drug addict, having been addicted to ‘Ice’ for a few years. He described how he consumed the ‘Ice’ …. on tinfoil. He consumed drugs in the toilet at his home, he said. He was unable to say precisely the dosage of ‘Ice’ that he took but he said he took it twice per day. Each time he would normally purchase 2 grammes of ‘Ice’ costing him $600 which would last him, he said, for three to four days and he purchased the drugs from his friend Ah Bun four to five times each month. Each month, he said, he would spend, on average, one to two thousand dollars on drugs.

     On the day of the arrest, the defendant told you that he purchased a larger amount of drugs as, on the previous occasion when he went to buy drugs, he was close to having been arrested by the police.

     The defendant told you that after he received his wages from his boss that night, he said he telephoned his friend Ah Bun and told him that he was Fei Wai and that he wanted to purchase $1,500 worth of ‘goose’ which he said would be approximately 14 grammes. He said he cycled from Sham Shui Po to somewhere near the location specified by him, which he said was roughly at the junction of Portland Street and Boundary Street, near to where coaches and minibuses stopped.

     He told you that a person whom he did not know arrived. This person, he said, told him that Ah Bun had asked him to give him, the defendant, the stuff. The defendant said that he handed over the $2,000. The unknown male told him that he had some remaining goods which he could sell to him at a lower price. He was not told the price, he said, but he received $350 change and he also gave him two small packets which he said he put inside his black pouch. The unknown male then pointed out to him where the larger packet was, about two to three coach‑lengths away, you recall, from him, on the floor. He went over and collected the larger packet of drugs. The defendant told you that he then went away, pushing his bicycle and intended to go home but was arrested by the first prosecution witness on his way.

     Regarding his earnings, the defendant told you in evidence-in-chief that in February of this year, he earned about $7,000 each month. Out of this, he said he gave his girlfriend one to two thousand dollars each month. He does not have to pay rent as his girlfriend pays this, he said.

     In cross-examination, members of the jury, you may recall the defendant indicating that in fact his earnings may well be less than $7,000 each month as he had only worked as a construction site worker for three months prior to his arrest and he worked as a casual worker earning $300 per day, working only eight to 12 days each month.  He had no savings and did not receive Comprehensive Social Welfare payments.”

6.  As the judge rightly pointed out to the jury:

“…. the defendant’s case is that whilst he accepts that he was indeed in possession of the drugs that night/early morning, he did not possess them for the purposes of unlawful trafficking; he had them for his own self-use.”

GROUNDS OF APPEAL

7.  The applicant had advanced seven homemade grounds.

8.  Ground 1:  There was insufficient evidence for the prosecution to prove its case.  Nothing by way of packing paraphernalia or large amounts of cash were found in his home that could prove the applicant was engaged in drug trafficking.  No call record was produced to show that he was in contact with a third party at the material time.

9.  Ground 2:  There was nothing to gainsay the claim that the applicant was a drug user.  That he was so was confirmed by the Correctional Services Department doctor upon his being taken into custody. There was nothing to show that the drug in question was not for his own consumption.

10.  Ground 3:  In cross-examination, the prosecutor asked the applicant if he provided financial support to the children of his ex-wife and ex-girlfriend.  That question had no relevance to the issue at trial.  In answering in the negative, the applicant must also have left an unfavourable impression with the jury.  The judge should have but wrongly failed to redress this point in his summing up.

11.  Ground 4:  The name of the applicant was written on the packet of ice found in his left front jeans pocket.  No drug dealer would leave his name on a packet of drug in such manner.  A dealer might, on the other hand, write his buyer’s name on a packet for ease of identification.

12.  Ground 5:  The prosecutor made certain assumptions about the applicant’s income.  These assumptions were not supported by evidence[2]. The judge should have but failed to instruct the jury on how to deal with these assumptions in his summing up.

13.  Ground 6:  As explained to the officer when he was first stopped, the applicant had no knowledge of what the weight of the drug in this case would be.  All he knew was he was buying $1,500’s worth of ice.  It was only at the police station when the drug was weighed that he found out about its weight.

14.  Ground 7:  In his closing speech, the prosecutor was wrong to suggest that it was possible for the applicant to have intended to traffic in only the two smaller packets of ice and not the big one.  That was pure speculation.  The judge should have but failed to redress this in his summing up.

DISCUSSION

15.  It is not impossible for drug addicts to be engaged in trafficking.  It is known that some addicts do traffic in drugs to feed their habit.  Ground 2 therefore has no merit.

16.  Ground 7 also has no merit.  It is perfectly possible for an addict-drug dealer to intend to sell part of the drug in his possession and reserve the rest for his own consumption.  Whether this is so is a question of fact for the jury.  The prosecutor was entitled to advance this as a common sense proposition for the jury’s consideration.  There was no cause for any interference by the judge, who correctly stated what the law is in this regard[3]:

“… I should tell you that it is not necessary for the prosecution to satisfy you that the defendant possessed the entire quantity of drugs, that is the 18.53 grammes of ‘Ice’ for the purposes of trafficking. If you are satisfied that he was in possession of some of these drugs for the purposes of trafficking in them, that is sufficient for you to convict of trafficking. But if you are not satisfied that he was in possession of any of these drugs for the purposes of trafficking, or think he may not have been, then you must acquit him of this charge of trafficking but convict him of the lesser alternative of possession of drugs.”

17.  Presumably, the prosecutor advanced the proposition just mentioned to anticipate what possible implications there might be from fact that the applicant’s nickname (as opposed to name) was written on the larger packet of ice.  That proposition goes a long way to meet the complaint in Ground 4.  In any event, this point was unequivocally dealt with by the judge in his summing up, and the jury obviously made nothing of it.  This is what the judge said[4]:

“… The marking of ‘Fei Wai’, the nickname of the defendant on the larger packet of drugs, Exhibit P10, also, the defence say, points away from any inference of trafficking.”

18.  As the judge fairly pointed out, the prosecution case was one based entirely on inferences, and from a restricted number of primary facts, so there could be no mistake on the part of the jury as to the scope and nature of the allegation against the applicant[5]:

“… The prosecution relies upon the inferences it says that you are able to draw from the direct evidence which is before you. Direct evidence can take many forms. For example, if there is reliable evidence from a witness who actually saw the defendant commit this crime, or if there was a video recording of it, or if there is reliable evidence from the defendant himself having admitted it in the form of perhaps a video interview, these would all be good examples of direct evidence.

 In this case, we do not have that. So it is often the case, as I say, as it is here, that direct evidence is not available, in which event, a jury is required to decide the case on circumstantial evidence. That simply means that the prosecution relies upon evidence of various circumstances relating to the crime and to the defendant in order to demonstrate that some or all of the circumstances, when taken together, establish by necessary inference that the defendant must have possessed these drugs for the purposes of trafficking in them. That is because the prosecution say that this is the only realistic inference to be drawn from the evidence.

……

 In this particular case, the prosecution’s case is that there is direct evidence from which you can find proved that the defendant must have possessed these drugs, or at least some of them, for the purposes of unlawful trafficking. The evidence is contained in the evidence of the third prosecution witness, Detective Senior Inspector Leung - whose evidence I will summarise for you shortly - but he basically said that, in February of this year, the average price for ‘Ice’ was HK$734 per gramme, equating to $13,601 for 18.53 grammes, well beyond the $1,500 or thereabouts that the defendant told the police in his video interview that he paid. In addition to this, you will recall the evidence of the defendant himself in the witness-box which was adduced in cross-examination that, at the time, he only earned about $300 per day and worked, on average, eight to 12 days each month, putting the price of this amount of ‘Ice’ well beyond his means, you may think. The prosecution say that the only reasonable inference to draw from this is that the defendant must have been in possession of these drugs for the purposes of unlawful trafficking.”[6]

19.  In the same breath, the jury was reminded of what the defence contended.  This and the other passage just quoted from the summing up are a complete answer to the complaint in Ground 1.  The jury decided the matter with full knowledge of what is or is not in the evidence, and their competing inferences[7]:

“ The defence, on the other hand, says that there is insufficient evidence from which to properly draw any inferences adverse to the defendant at all. In the context of this case, the defence says that there is evidence which you should consider which actually points away from him having possessed the drugs for the purposes of trafficking. Firstly, the lack of any drug paraphernalia by way of packaging or digital scales found at his home during a house search. In addition, the defence say that the evidence of daily usage dosage contained in the expert’s report, Exhibit P9, is perfectly consistent with the account given by the defendant both to the police in his video interview and evidence in court, that the quantity of drugs he bought, that is 18 grammes, would last him about a month.

 Also, the fact that the defendant is a drug addict who, on this occasion, bought 18 grammes of ‘Ice’ which was his supply for a month points away from any inference of trafficking as he was avoiding the risk of arrest by making repeated visits to his supplier.  The marking of ‘Fei Wai’, the nickname of the defendant on the larger packet of drugs, Exhibit P10, also, the defence say, points away from any inference of trafficking.” 

20.  Grounds 3 and 5 have no merit.  As said, the applicant’s lack of means to purchase the lot of drug entirely for his own use was a major pivot in the prosecution case[8].  The prosecutor was entitled to press the point by inquiring into various aspects of the applicant’s expenditure.  By asking such questions, no insinuation can justifiably be presumed to have been made or perceived to be so by the jury. 

21.  Ground 6 has no merit.  The point here is not whether the applicant knew he was purchasing 18.53 grammes of ice.  The point is whether any dealer would part with that amount of ice at $1,650.  The third prosecution witness had testified that it could fetch $13,601 when sold at quantities of 5 grammes and below.  It is for the jury to decide whether the applicant did get the very substantial discount that he said he did for bulk purchase, or that his version of events was in fact untrue.

CONCLUSION

22.  None of the applicant’s grounds of appeal has any merit.  We are satisfied that the defence case had been given a fair wind at trial. 

The jury by a majority of 6 to 1 obviously disbelieved the applicant.  For those reasons, we dismissed his application.  

[1]  The rest of the quantitative references in this judgment are by weight of the crystalline solid, as opposed to the weight of its pure narcotic content.  The difference between the two is however minimal.

[2]  When asked what those assumptions were by this Court, all the applicant did was give a rambling explanation of his finances.

[3]  Appeal Bundle, pages 20U – 21F.  Partial retention of a quantity of drug for self‑consumption by the trafficker, if accepted, may however affect sentence.

[4]  Appeal Bundle, page 23Q – R.

[5]  Appeal Bundle, page 21J – T, and pages 22P – 23F.

[6]  The judge was careful enough to add, later on in the summing up, that: “the inspector conceded in cross-examination that this price [ie $734 per gramme] was based on quantities of 5 grammes and below, and that he had no data for the retail price of 10 to 20 grammes of ‘Ice’ …..” (Appeal Bundle page 27C –E) 

[7]  Appeal Bundle, page 23F – R.

[8]  See the quote under paragraph 18 of this judgment.