HKSAR v. KWANG SAU FAN AND ANOTHER

CACC 179/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2001

(ON APPEAL FROM DCCC NO. 1090 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. The appellants, to whom we shall refer as D1 and D2, were each charged in the District Court with trafficking in dangerous drugs. The charge alleged that on 28 August 2000 they unlawfully trafficked in 9.663 kilogrammes of herbal cannabis. They were convicted after trial by Deputy Judge McNair. D1 was sentenced to three years and four months' imprisonment, and D2 to a term of four years' imprisonment. D1 and D2 were refused leave by the single judge to appeal against conviction. D1 renews her application nonetheless. She was however granted leave to appeal against sentence, as was D2. D2 does not pursue his application in relation to conviction.

The evidence

2. The facts of the case were these. On 25 August 2000 Customs Officers intercepted a speedpost parcel at the International Mail center. The parcel had originated in Shenzhen. It was screened and believed to contain cannabis. It was addressed to Chung Nam Trading Company at Rooms 1201-1203, Chinachem Johnston Plaza, Wanchai. That address was in fact that of Capital International Business Centre, which was a company providing a postal and storage service. Chung Nam was one of that company's clients. It was arranged by the customs authorities that the parcel would be delivered, and that officers would be placed at the offices to await its collection. However, no one turned up that day. The parcel was examined, and it contained 10 slabs of herbal cannabis, packed expertly in packets of supposed 'Pet Litter'.

3. On 28 August, the company received a telephone call and the caller said that he would collect the parcel that day, so the parcel was taken back to the premises, and Customs Officers again awaited its collection.

4. It is common ground that D1 arrived at those premises in the late afternoon, went to the counter, and asked for the parcel. We shall examine shortly exactly what then transpired but, for introductory purposes, it suffices to say that the parcel was tendered to her, and she was arrested at those premises. She said that she was collecting the parcel for someone called Ray, and that she did not know what was in it. She agreed then to cooperate with the officers to locate him in a controlled delivery operation. She was given a tape recorder, and went in a taxi with Customs Officers whilst numerous telephone calls were made between herself and the man Ray. In the course of the conversations, Ray expressed considerable anxiety about prompt delivery of the package, and gave her directions from time to time as to where to go. He was driving a motor vehicle, and he passed the taxi and stopped. The Customs Officers who had followed, approached him and arrested him. He was D2.

5. Neither appellant gave evidence at trial.

D1's case

6. We turn first to D1's application in relation to conviction.

7. The judge in his Reasons for Verdict states that D1's case was that she never took possession of the drugs, so that on her case the presumption raised by section 47 of the Dangerous Drugs Ordinance Cap 134 did not arise; but if it did, that there was, she argued, ample evidence to rebut the presumption, namely, her cautioned statement, her reaction to her arrest, and her cooperation with the customs authorities in securing the arrest of D2. Her case, said the judge, was also that the prosecution witnesses were unreliable.

Reasons for Verdict

8. The judge said in his Reasons for Verdict that:

"D1 has made a number of exculpatory statements, oral and written, the admission of which was not contested."

9. As to the act of possession, the judge said this:

"D1 bent down to take the parcel. As she laid hands on it, she was stopped by Customs Officer 9155 and fellow officers.

Having considered the evidence regarding possession of the parcel, I find that by identifying herself as an agent of Chung Nam and confirming that fact by paying an outstanding Chung Nam account, D1 was clearly acting on the authority of Chung Nam, the intended recipient. By signing the receipt for taking delivery of the parcel and its subsequent production to her for removal from Capital International and her action of bending down to deal with it immediately thereafter, she took effective physical possession of the parcel. The parcel contained almost 10 kilogrammes of herbal cannabis. The presumption set out in section 47, Cap. 134 is established. Regardless of D1 never having had it in physical possession, and never been in physical possession of the DD itself, it is by law presumed that she had the DD in her possession and that she knew the nature of the drugs. This presumption may be rebutted on a balance of probabilities." (Tr. pp 18-19)

10. The judge then turned to the out-of-court statements made by D1 after her arrest. Her comments at the company premises were recorded, and she later acknowledged the accuracy of the recording. The next day there was an interview, the contents of which were adduced in evidence. In her interview, she denied knowledge of the contents of the parcel. She spoke of her relationship with D2; a friend, she said, whom she had met a few months previously. He had simply asked as a favour that she collect two parcels and take them to Mong Kok where he would contact her again.

11. The judge then said this:

"The matter of weight to be given to D1's exculpatory statements is a matter for the court. I bore in mind the case of AG v Lee Siu-lam [1989] 2 HKLR 370 at 374 in which Silke, VP as he then was expressly adopted the words of Laughton, LJ in R v McCarthy [1980] 71 Cr. App. R. at 142 regarding circumstances where an accused gives an exculpatory account of his movements but does not support it by evidence of his own or other evidence.

D1 did not testify or call witnesses. The court is entitled to consider that fact although it must bear in mind that the failure to support the exculpatory statements is not evidence upon which the prosecution can rely. Having considered all the circumstances surrounding the statements, her initial reaction to arrest, all the evidence relevant to D1's case both for and against her, I find that the section 47 presumption is not rebutted. I give no weight to her denials of knowledge as to the nature of the contents of parcel.

The weight of drugs here is substantial, almost 10 kilogrammes. I do give weight to those parts of her statements wherein she has described what she is to do with the DD once it was in hand. Those statements are confirmed by subsequent events to be true and reliable. D1 was picking it up for another to whom she would deliver it after having received further instructions." (Tr. p 20)

The application against conviction

12. The first ground of appeal is the judge's alleged failure to recognize that D1's statements were mixed, in the sense that they contained inculpatory as well as exculpatory statements.

13. It was wrong, goes to the argument, for the judge to evaluate the statements as if they were purely exculpatory; and that the judge failed to consider the exculpatory parts of the statements as potentially true. Had he done so, and since there was evidence to suggest that they were true - in particular her conduct in assisting the police officer after her arrest by engaging in an operation to deliver a parcel to D2, who was to think the parcel was the one containing drugs - the burden of rebutting the statutory presumption, if it existed, so goes the argument, would have been discharged.

14. The oral statement by the applicant to the police upon her arrest was that "the stuff" was not hers; that she was collecting it for Ray; and that she did not know what was inside. In an interview, which took place later, she repeated that she had been asked by Ray to collect the parcel, that once she had done so she would be contacted again, and that she had planned after collection to telephone him for instructions as to delivery. But she said that he had not told her what the goods were; she was receiving no remuneration for her trouble; was collecting the parcel only as a favour to Ray who was her friend; and did not know what his relationship was with the Chung Nam Trading Company.

15. In the case of R v Garrod [1997] Crim L R 445, 446 it was held that:

"Where the statement contains an admission of fact which [is] significant to an issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, then the statement must be regarded as 'mixed.'"

16. Mr Saw for the Respondent concedes in his written argument that the statements in this case can properly be said to be 'mixed' rather than wholly exculpatory. Given that it was an issue in the case, to which the judge avers, whether the applicant had ever taken possession of the parcel, given her statement to the police that she had collected it, and that she was about to deliver it, that is a concession which we think is properly made.

17. The question then is whether the judge, as is asserted, failed to recognize them as mixed. The argument that he did fail so to recognize them is based on his reference to D1's "exculpatory statements" as well as to the fact that the two authorities to which he referred, namely, Li Siu Lam and McCarthy were instances of wholly exculpatory statements.

18. We think that the answer lies, as it so often does in these cases, in an examination of full text; and in the point which the judge was taking from those particular two cases.

19. As to text, we note the judge's express reference to the weight to be attached to the statements which were exculpatory; his conclusion that the statements did not in the event rebut the presumption under section 47 of the Dangerous Drugs Ordinance; and we note that, by contrast, he said that he did give weight to certain parts of the statement in which she described what she intended to do with the package. Had the statements been treated by the judge as wholly exculpatory, then the question of weight simply did not arise. They could at best have been used to note the reaction of the accused to an allegation. The fact that the judge talks of weight, and the fact that he refers to other parts of the statement to which he does give weight, illustrates that he was treating the statements as mixed, and that his reference to "exculpatory statements" is a reference to exculpatory utterances within a single overall statement.

20. We can see that the two cases, Li and McCarthy, are cases which concern wholly exculpatory statements, but the judge's discussion of Li was not one which was directed at whether the statements could be used as evidence of its truth rather than at the applicants reaction, but was limited to that portion only in which the Court of Appeal addressed the question whether comment was permissible where exculpation advanced in statements was not supported by evidence. In the present case, the facts at issue were peculiarly within the knowledge of the applicant, and the failure of the applicant to support her assertion of non-knowledge of the contents of the parcel by giving evidence was a factor which the judge was entitled to note; and which he did. That is, we believe, as far as the matter went. We have to add that even if, contrary to our assessment, the judge treated the statements as wholly exculpatory, it would make no difference to our conclusion as to the outcome of this appeal. This was a case in which the bare assertions of the applicant in a statement to the police could have no hope of dislodging the presumption to which we shall shortly turn. As the single judge who refused leave as to conviction said:

"I do not think it is arguable that when a defendant elects not to give evidence in court on an issue on which the burden of proof is on him, a judge errs in law in choosing in those circumstances not to give any weight to exculpatory statements previously made by the defendant out of court."

21. The second ground is that "the trial judge failed properly to take into account the actions of the accused before and after her arrest. These actions tended to support her claim to be an innocent agent." We do not, with respect, intend to spend time on this ground. It is not supported by the Reasons for Verdict, and we have no reason to believe that the judge failed to take into account all relevant matters. Judges do not have to put down every little piece of evidence to which they did or did not have regard. The Reasons for Verdict show that the judge was well aware of this applicant's case, and of the significance which she attached to the help she gave to the police as evidence of her innocence.

22. The third ground is in similar vein, and has similarly little merit.

23. The fourth ground is an attack on the judge's finding that the applicant was in physical possession of the packet and that the presumption under section 47 of the Dangerous Drugs Ordinance was engaged.

24. Section 47 of the Dangerous Drugs Ordinance provides as follows:

(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

...

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.

25. It is evident from the passages we have recited from the Reasons for Verdict that the judge applied the presumption in D1's case, and then held it not to have been rebutted.

26. It is suggested by Mr Haynes, who appears for her upon this application, that physical possession was not in this case proved, so that the judge was not entitled to apply the presumption. His argument relies on the evidence of the receptionist of the secretarial company that the applicant did not actually touch the parcel and Mr Haynes says that the judge did not make clear what facts the judge found.

27. The evidence of the receptionist was that the applicant had previously collected a parcel from those offices. When she arrived on 28 August she, that is, the applicant, announced that she had come to collect 'the thing'. The receptionist then went to take the parcel from the 'secretarial place' and she pulled it (because it was heavy) into the reception area where the applicant was. Before the receptionist had fetched the parcel she handed to the applicant a receipt which the applicant signed. We have a copy. It is an acknowledgement by the collector that one parcel has been collected.

28. The receptionist was asked whether D1 did anything to the parcel and she said No; but that as soon as D1 saw the parcel, she (D1) made a telephone call. This evidence of hers was given on 20 April 2001, that is, some eight months after the events of which she spoke.

29. The evidence of the Customs Officers, who were at the premises of the mailing centre, and who were watching the events unfold, was that the secretary carried the parcel into the reception area and that D1 then bent down, had a look, and then placed one hand under the parcel, and the other on top, and was ready to lift it, or had lifted it a little, when the officers intervened. The effect of their evidence was that they had deliberately waited for her to touch, or to take hold of, the parcel.

30. The judge was aware of the contention that D1 had never taken possession of the drugs and that the presumption did not arise. He says just that on the first page of the Reasons for Verdict. He says a little later that he has considered all the relevant evidence and he then proceeds to state what facts he found. In the course of setting out the facts, he says that "D1 bent down to take the parcel. As she laid hands on it, she was stopped by Customs Officer 9155 and fellow officers". Later, at page 19, he talks of her bending down to deal with the parcel, which is self-evidently another acceptance of the officer's evidence. It is clear enough to us that that is what he found, and we do not see why one is to assume, or to fear, that he has ignored the evidence of the receptionist. Indeed, as Mr Saw has pointed out in the course of argument today, much cross-examination of these officers was directed at the very question whether the parcel was handled. The judge obviously took the view that the officers, whose function, unlike that of the receptionist, was to observe the detail of what D1 did, were correct. It is clear enough to us that the judge accepted the officers' evidence. That being so, it is, in the circumstances, difficult to see what other conclusion the judge could have reached but that D1 was in physical possession of the parcel. We confess to having had some difficulty in understanding what the judge meant by the first phrase in the sentence, which we find at page 19D, when he said:

"Regardless of D1 never having had it in physical possession, and never been in physical possession of the DD itself, it is by law presumed that she had the DD in her possession and that she knew the nature of the drugs."

The judge has said several times that the presumption was engaged and immediately prior to the passage which we have just cited, he refers to D1 having "effective physical possession" of the parcel. He has referred in terms to his finding that D1 bent down to take the parcel, and laid hands on it. We are satisfied that in the passage about which we have raised the query, though less than precisely phrased, the judge had in mind the terms of section 47(3) of the Dangerous Drugs Ordinance, and that his finding of physical possession, and therefore his application of the presumption, was justified.

Conviction: conclusion

31. These, then, are the grounds of appeal against conviction. We do not see merit in them, and the application for leave to appeal against conviction by D1 is dismissed.

Sentences

32. Both applicants appeal, with leave of the single judge, against sentence. The judge said that given the quantity of drugs and taking into account the fact that the cannabis was herbal rather than resin or oil, he took a starting point in the case of each appellant of three years and six months' imprisonment. It would appear, though he did not say so in terms, that by application of the tariffs from R v Tuen Shui Ming [1995] 2 HKC 798, he would otherwise have taken a starting point of four years' imprisonment. Then he added this:

"The fact that the dangerous drugs [were] transported across the Hong Kong/Mainland frontier by use of government postal services is, in my view, an aggravating circumstance which merits an additional 6 months' imprisonment". (Tr p 26)

So he sentenced D2 to four years' imprisonment but, given D1's cooperation with the Customs Officers in organizing a controlled delivery, he reduced the term in her case to one of three years and four months' imprisonment.

33. Neither applicant was of previous good character. D1, who was aged 29 years at the date of the offence, had previous convictions for possession of dangerous drugs, and for trafficking in dangerous drugs, and in particular in 1995, she was sentenced to six years' imprisonment for trafficking.

34. D2, who was of the same age as D1, had convictions for a variety of offences, including a conviction for trafficking in dangerous drugs in 1995, for which he was sentenced to six years' imprisonment.

35. As to these records of offending, the judge said that the appellants could not pray in aid previous good character. What he did not do was to aggravate the sentence by reason of the fact that they had records for trafficking in dangerous drugs. To this factor we shall return.

36. It is said by the appellants that the judge was wrong to treat the use of the postal service as an aggravating feature and wrong to use as an aggravating feature that the drugs were imported across from the Mainland, because the appellants, so it was said, were not charged with trafficking by importation, nor was it a necessary implication from the facts found by the judge that they were the importers.

37. The issue which troubled the judge was, we believe, that of importation, rather than the method of importation. The evidence was that the drugs came into Hong Kong on 25 August, that is, three days before they were picked up by D1 for delivery to D2. Whilst a sentencing court should not ignore the factual matrix of a case, it was nonetheless not alleged in this case that either appellant was involved in the importation of the drugs. We do not know the precise connection which either D1 or D2 had with the company Chung Nan Trading and, more particularly, one does not know, and there is no finding by the judge, that D1 was herself responsible for, or involved with, the act of importation. The same point may be made for D2. It may just be, for example, that someone else was the importer, and that D1 and D2 were acting under instructions to collect a parcel for onward distribution, although D2 was certainly taking a most active and concerned role in ensuring that the parcel was delivered to his intended destination. The aggravation of sentence on the grounds of importation as against these two appellants was not justified or explained by the judge on the evidence, and it is appropriate therefore to scrutinize the sentences imposed with the question whether those sentences were manifestly excessive, ignoring the importation factor.

38. Mr Cheung, who appears on behalf of the second appellant, accepts on the authority of Tuen Shui Ming that the tariff for trafficking in a quantity of 9,000 grammes of cannabis resin would be four years' imprisonment. He says that from that starting point, there should have been a reduction of one year. He draws that suggestion from a passage in the same judgment. But that passage must be read as a whole. It is, at p. 804, as follows:

"It is clear from the evidence before us that the concentrations refer to in Chan Sze Man are no longer correct. We are satisfied that the sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis and that cannabis oil has an average also about four times higher than the average in cannabis resin. Taking this into account the sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should, as we have already indicated, be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could except perhaps in cases where very larger amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin."

39. There is no directive there that the reduction must be a one year reduction, no more no less; and we note the reference to very large quantities. We have to say that nine kilos is a large quantity indeed, though we recognize that some of the cases which have come before the courts have involved quantities which have been larger. We do not believe, in the full circumstances of this case, that the judge can be said to have erred in principle, or to have acted with manifest error, in deducting six months rather than, say, nine months or one year.

40. It is established that whilst offenders are not to be sentenced for previous offences, repetition of trafficking offences may well call for aggravation of sentence to reflect the aggravating features of persistence, the failure of the previous sentences to deter, and the court's duty to protect the public. See HKSAR v Chan Pui Chi [1993] 3 HKC 848.

41. On 7 May 1999, D1 was released from a six-year prison term for trafficking in dangerous drugs, and here she was, 15 months later, trafficking in nine kilos of cannabis.

42. D2 was released in April 1999 from a six-year term for trafficking in drugs, and here he was, 16 months later, enthusiastically and urgently directing D1 where to go to help him deliver drugs to customers. We note that he has another trafficking conviction in 1993, as well as other offences.

43. The judge approached the matter on the basis that since neither was of good character, they did not deserve credit which would have been their due had they not previously offended. With respect, this was a case in which sentence should have been aggravated by the history we have just recited, of two defendants who have in the recent past been engaged in serious trafficking of drugs, and have cocked a snook at the system after their release, and are at it again. The starting point of four years which the judge took in each case, albeit for other reasons, was in the circumstances, not too long.

44. In the case of D1, it is said that inadequate credit was given for her cooperation. We think not. We think the amount deducted, that is, eight months, was about right.

Sentences: conclusion

45. Accordingly, the appeal against sentence, in the case of each appellant, is dismissed.