HKSAR v. YIU HUNG KUK

CACC 122/2018

[2018] HKCA 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 122 OF 2018

(ON APPEAL FROM DCCC NO 943 OF 2017)

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J U D G M E N T

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1.  The applicant faced one charge in the District Court of trafficking in a dangerous drug, namely, 7 grammes of a crystalline solid containing 7 grammes of methamphetamine hydrochloride, colloquially known as “Ice”. She pleaded not guilty to trafficking but entered a plea of guilty to simple possession, which plea the prosecution did not accept.

2.  On 18 April 2018, the applicant was convicted after trial before HH Judge Casewell, having been represented by counsel.  She was sentenced to 3 years and 5 months’ (or 41 months’) imprisonment.  She now seeks leave to appeal against both conviction and sentence.

3.  The applicant began by asking for an adjournment of today’s hearing.  However, having ascertained that the applicant has been refused legal aid and has had her requests for legal assistance turned down by both the Bar Free Legal Service Scheme and the University of Hong Kong Faculty of Law legal education programme, her hope that her family will raise funds to brief a private lawyer for the appeal is in my view a very remote one.  In any event, none of her family members were present in court to speak to their efforts to obtain a lawyer.  Accordingly, I refused the application for an adjournment.

The prosecution case

4.  At 3:53 am on 20 June 2017, the applicant was intercepted by police officers on Shantung Street near Nathan Road in Mong Kok, Kowloon.  She was searched and found to have in the left front pocket of her dress 3 plastic bags containing a total of 7 grammes of a crystalline solid containing 7 grammes of methamphetamine hydrochloride wrapped inside a tissue paper.  She was arrested and taken to Mong Kok Police Station.

5.  Upon a body search conducted on the applicant at Mong Kok Police Station, she was further found to be in possession of $9,400.40 and RMB520 in cash.

6.  A post‑record was subsequently made at Mong Kok Police Station concerning the course of arrest and the applicant’s answer to the caution, namely “I bought this dangerous drug, ‘Ice’, at 700 dollars for my own consumption”[1].

7.  In a later interview[2], the applicant further admitted the following matters:

(i)   At about 3:30 am on 20 June 2017, she bought 3 packets of “Ice” for $700 from a male at Mong Kok MTR Station for her own consumption;

(ii)   She wrapped the 3 packets of “Ice” in a piece of white tissue paper and placed it in the left chest pocket of the dress she was wearing;

(iii)   She had had the habit of smoking “Ice” for about 10 years; her usual method of ingestion being to smoke with an “Ice” pot;

(iv)   The $9,400.40 in her possession was a Comprehensive Social Security Assistance (“CSSA”) double payment.  She kept the money on her because she was trying to rent a place to live;

(v)   She usually smoked “Ice” 4 to 5 times a week, using about 0.5 gramme each time.

8.  No drugs or associated paraphernalia were found on a search of the applicant’s residence in Kweilin Street, Sham Shui Po, Kowloon. The estimated street value of 7 grammes of “Ice” in June 2017 was $2,401 ($343 per gramme).

The defence case

9.  The applicant admitted possession of the “Ice” but claimed that it was for her own consumption.  Admitted Facts were signed by counsel on her behalf, agreeing to much of the prosecution case[3].

10.  The applicant testified that she was a drug addict and consumer of “Ice”, with numerous convictions for possession of a dangerous drug, but no convictions for trafficking in dangerous drugs.  She had been to DATC a number of times and had also been sentenced to imprisonment for possession of a dangerous drug[4].

11.  Under cross-examination, the applicant reiterated that she had only paid $700 for the drugs, even though the market price was $2,400 odd[5]. She consumed about 2 grammes per week and had bought 7 grammes because it was safer and cheaper[6]. She said she could afford the drug, on which she spent $1,000 per month[7].  She disagreed that part of the drugs would have been sold on to help her afford her addiction[8]. All the money found on her was for the purpose of finding a place to rent on the following day[9]. She also produced a urine test report which showed that she was positive for methamphetamine upon her detention[10].

Reasons for verdict

12.  Following the applicant’s admitted possession of the drugs, the judge held that the issue was whether that possession could be proved to the criminal standard to be for the purposes of trafficking[11].  There being no direct evidence of trafficking[12], the prosecution relied upon an inference being drawn[13].

13.  The judge noted that the prosecution relied on the following factors for the inference of trafficking[14]:

(i)   The applicant was in possession of 7 grammes of methamphetamine hydrochloride, which was more than would be needed by a retail consumer of the drug;

(ii)   The price of the drug accepted in the Admitted Facts was beyond the applicant’s ability to finance, given that her only income was her support under CSSA, which, on her own evidence, covered rental and subsistence living and did not cover a drug habit up to $1,000 a month;

(iii)   The drugs were found on the applicant in a public place in the early hours of the morning in 3 bags - ie in packaging that made it easy to distribute.  They were also found together with a large sum of money in local currency and Renminbi.

14.  The judge referred to the evidence presented and accepted in the case of Attorney General v Ching Kwok Hung[15], namely, that 0.1 gramme of “Ice” without reuse would be sufficient for 3 to 4 “hits”, while 1 gramme could be used to obtain 10 to 15 “hits” on the basis of use and reuse.  The judge concluded that 7 grammes of methamphetamine hydrochloride could be used to obtain between 70 to 105 “hits”[16].  I might also point out that the purity of the drug in question was 100%.

15.  On the basis of the agreed value of the drugs, the judge did not believe the applicant’s account of buying the drugs for only $700 ‑ this would have represented some two‑thirds discount from the price prevailing at the material time.  The judge found that the applicant could not afford to purchase $2,401 worth of drugs, as she had no means to purchase anything but a small quantity of drugs; accordingly, she had made up a much cheaper price so that it would appear more affordable given her limited resources[17].

16.  The judge also found the applicant’s evidence as to the source of the money found on her and her rate of consumption to be unbelievable.  Her stated consumption rate of 0.5 gramme taken 4 to 5 times per week would lead to her spending $686 per week or $2,744 per month at prevailing prices.  Yet her evidence of spending only $1,000 per month was not consistent with her stated consumption rate[18].

17.  Save that the applicant was a drug addict and a regular consumer of “Ice”, the judge rejected her evidence in this entirety[19].

18.  Given all these various factors, including the possession of drugs and its packaging and price, the judge found that he could properly draw an inference that the dangerous drugs were possessed for the purpose of trafficking[20].

Reasons for sentence

19.  The judge referred to the sentencing guidelines for up to 10 grammes of the drug, which would lead to a sentence in the range of 3 to 7 years of imprisonment[21].

20.  Taking into account other factors, such as the applicant’s personal background and the conduct of the defence at trial, where the facts were essentially admitted, the judge adopted a starting point of 51 months’ (or 4 years 3 months’) imprisonment[22].

21.  The applicant’s evidence that all of the drugs were for her own consumption was rejected, but there was undisputed evidence that she was addicted to “Ice”[23]. The judge thus gave a discount of 10 months on the basis that a significant portion of the drug would have been used for the applicant’s own consumption[24].  This resulted in a final sentence of 41 months’ (or 3 years and 5 months’) imprisonment.

Grounds of appeal

22.  In her Notice of Application for Leave to Appeal (Form XI), the applicant’s asserted that “I had another case in which the quantity of the dangerous drug exceeded that in this case by half, and still (the charge) could be amended to possession.  However, in this case, I was charged with trafficking.  That is my grounds of appeal”.  Before me this morning, she points out that no scales or empty plastic bags were found either on her person or at her home.  Nor was there any evidence of finger‑prints, which might have suggested that others had sold her the dangerous drugs in question.

Respondent’s submissions

(Conviction)

23.  Ms Lam, on behalf of the respondent, submits that whether the applicant had previously been charged with possession instead of trafficking of dangerous drugs in another case in which the quantity of the dangerous drugs was greater was an irrelevant matter that did not affect the safety of the conviction.  Each case must depend on its own facts.

24.  She also argues that the judge was entitled to take judicial notice of the evidence concerning consumption rates discussed in Attorney General v Ching Kwok Hung.

25.  The respondent also referred to HKSAR v Tam Yi Chun[25], judgment in which was delivered on 9 June 2014.  The Court of Appeal there received and accepted the evidence of Doctor Tse Man Li, a Consultant and Deputy Director of the Hong Kong Poison Information Centre under the Hospital Authority.  Dr Tse endorsed much of what was said about “Ice” in Attorney General v Ching Kwok Hung.  He said thatfor regular users of “Ice”, the average daily consumption would be in the range of 0.1 to 0.5 gramme.  The Court also noted that “Ice” can be used and reused.

26.  Ms Lam submits that the judge was entitled to reject the applicant’s evidence and to infer that the applicant was unlawfully trafficking, based on these factors:

(i)   The drugs were possessed in a public place in the early hours of the morning;

(ii)   The applicant had no source of income other than the allowance she received under CSSA;

(iii)   7 grammes of “Ice” could be used to obtain a significant number of “hits”, which was more than was needed by a normal consumer of the drug;

(iv)   The applicant was found to be in possession of a substantial amount of cash.

(Sentence)

27.  In respect of the application for leave to appeal against sentence, Ms Lam submits that:

(a)   according to the sentencing guidelines in HKSAR v Tam Yi Chun, the appropriate sentence for trafficking in up to 10 grammes of “Ice” ranged from 3 to 7 years’ imprisonment;

(b)   on a strictly arithmetical approach, the starting point for trafficking in 7 grammes of “ice” should be 5 years and 10 months’ imprisonment.  Nevertheless, although the starting point of 51 months’ imprisonment adopted by the judge appears to be on the low side, it was within the acceptable range of sentence open to the judge, given the applicant’s background and the admission of relevant facts at the trial;

(c)   the discount of 10 months (representing a 19.6% reduction from the starting point), to reflect the judge’s finding that a significant portion of the “Ice” was for the applicant’s own consumption, was within the range of 10 to 25 percent identified by the Court of Appeal in HKSAR v Chow Chun Sang[26];

(d)   the sentence passed by the judge was neither wrong in principle nor manifestly excessive.

Consideration

(Conviction)

28.  The judge dealt with all relevant aspects of the applicant’s evidence and concluded that she was trafficking.  I might add to the reasons he set out that the purity of the quantity of methamphetamine hydrochloride seized from the applicant was 100%.  If anything, that fact militates against the sort of discounts in price for which the applicant was contending. Plainly, she could not conceivably afford this quantity of drug in that purity on her CSSA allowance alone.

29.  I can see nothing wrong with the judge’s reasoning and can see no reasonably arguable grounds of appeal against conviction.  Nothing the applicant has advanced this morning affords her any reasonable grounds for appeal.  Accordingly, the application for leave to appeal against conviction is refused.

(Sentence)

30.  The starting point for this quantity of methamphetamine hydrochloride under the relevant sentencing guidelines could have been well in excess of the 51 months’ imprisonment adopted by the judge.  Indeed, it could have been as much as 70 months.  I can see no reasonable argument that the discount he gave the applicant for her own consumption of part of the drugs, namely 19.6%, was insufficient: indeed, it was fully in accordance with the guidance given in HKSAR v Chow Chun Sang.

31.  As the Court of Appeal has said time and again, different sentences passed on different facts by different courts on different occasions are of little or no use to an appellant: what is important is whether the sentence under review is in accordance with relevant principles and guidelines.

32.  I can see no reasonable grounds for appeal against sentence.  Accordingly, the application for leave to appeal against sentence must also be refused.

33.  The applicant is duly advised that she has the right to renew either or both of her applications for leave to appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.