HKSAR v. CHAN HONG

[English Translation – 英譯本]
CACC 568/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 568 OF 1997

(ON APPEAL FROM HCCC NO. 67 OF 1997)

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BETWEEN

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. The Applicant was charged with two counts of trafficking in dangerous drugs.  After trial in the Court of First Instance before a judge and jury, the Applicant was convicted on both counts.  He was sentenced to imprisonment for 2 years on the first count and imprisonment for 7½ years on the second count, with the two sentences to run concurrently, making a total term of 7½ years.  He now applies for leave to appeal against conviction.

2. The prosecution case was as follows.  On the night of 6 October 1996, a  police sergeant and 3 police  constables were patrolling the Tuen Mun area.  At about 8.18 p.m., they saw the Applicant wandering near a refuse collection chamber outside Block 72 of Hing Tin Settlement Area.  He was putting his left hand inside his shirt pocket.  The police stopped and searched him and found from his shirt pocket two transparent plastic bags that contained dangerous drugs, namely  crystalline solid weighing 1.81 grams and containing 1.61 grams of  methamphetamine hydrochloride, commonly known as “ice”.  When the police found those two plastic bags, the Applicant pushed away the officers, turned around and started to run.  He was subsequently arrested at the kitchen of Unit 23 of Block 72.  Under verbal caution, he said, “Ah Sir, please give me a chance.”  The Applicant then led the police into Unit 23 where a search was conducted.  As the unit was small in size, the Applicant stood at the entrance together with one of the police officers while another officer conducted the search.  The officer found a green paper bag which contained a metal box, which in turn contained two transparent plastic bags, which measured 3 inches x 3 inches and 2 inches x 1 inch respectively.  The two bags contained  crystalline solid weighing 16.56 grams in total and containing “ice” totalling 14.62 grams.  The officer then asked the Applicant, “What is in the box?”  The Applicant replied, “Ah Sir, it is ‘ice’.”  The police also found, underneath the metal box, a pack of white anti-damp pellets, a piece of foil paper, two scales, and two plastic bags which contained a total of 180 mini plastic bags.  The police then further questioned the Applicant, and the conversation went as follows:

3. The police also found three packs of white anti-damp pellets and a roll of smoking paper, and also a roll of foil paper by the bedside.  The officers then asked the Applicant, “What are the other anti-damp pellets and smoking paper for?”  The Applicant replied, “For no particular purpose.”

4. The police conducted a search of the Applicant’s person and found $1,140 cash and a pager.  The police then asked the Applicant:

5. The police proceeded to declare to the Applicant that he was arrested for drug trafficking, and then cautioned him.  The Applicant replied, “Ah Sir, I have told you everything.  Say that I sell and I am sure dead.”

6. In giving evidence in court, the Applicant denied he had been stopped by the police in the street or that drugs had been found on his person.   He said that he and his father lived together at Unit 23 and each of them had a set of keys to that unit, whereas a third set of keys was hung by the side of the metal gate at the entrance.  On the night in question, the Applicant was watching television inside the unit and his father was preparing for laundry.  Police officers entered the premises and enquired of him about his girlfriend “Golden Hair”.  The Applicant replied that she had previously resided at his place for a few days.  He was then handcuffed and brought to the kitchen where he was kept under watch by a police officer.  The police then started searching the unit, although he could not see how they did it.  After a while, the police brought him back to the unit, and he noticed that the unit had become very messy following the search.  A police officer handed a green paper bag to the  police sergeant.  The Applicant was then taken to the police station.  He denied that those items belonged to him.  He also denied having been questioned by the police or having given any response.

7. The Applicant’s father also testified at trial.  He said he had seen the Applicant’s girlfriend “Golden Hair”.  On the night in question, a female police officer asked him for his personal particulars.  Later, in the small hours, the Applicant’s girlfriend arrived at the unit to look for the Applicant and then left, taking away her own belongings.  The Applicant’s father said he had never seen the Applicant consume drugs, nor was he himself a drug addict, and he had never asked the Applicant why he had drugs with him.

8. Mr Chan, Counsel for the Applicant, raises a number of grounds of appeal against conviction.  The first to third grounds relate to the first charge, that is the prosecution’s allegation that the Applicant was wandering near the refuse collection chamber and having two bags of drugs on his person.  Counsel contends that the prosecution evidence in respect of the first charge, including evidence of the quantity of the drugs, did not support the offence of drug trafficking, because neither the actus reus nor the mens rea of the offence had been established against the Applicant.  For this reason, the trial judge erred in rejecting the Applicant’s submission of no case to answer.  Counsel submits that the judge erred in law in saying that the Applicant was, by reason of drugs having been found on his person in the street, dealing with those drugs and, as such, trafficking in them.  Counsel also submits that the judge erred in law when he was directing the jury on the law of drug trafficking.  First, a defendant who was possessing drugs while walking along the street could not be said to be trafficking in drugs; second, even if a defendant was possessing and dealing with drugs, he was not necessarily trafficking in them, and the prosecution had to prove that he intended to or aimed to traffic in the drugs when he was dealing with them.  By way of illustration, Counsel says that, in consuming drugs, a drug addict must be possessing and dealing with the drugs, but the drugs were being possessed and dealt with for the purpose of self-consumption, and hence the drug addict did not intend to or aim to traffic in the drugs, and therefore what the drug addict did could only constitute possession of but not trafficking in the drugs.  Counsel contends that the judge had failed in his summing-up to clearly explain and direct the jury on the above law.

9. After the prosecution closed its case, the Applicant made a submission of no case to answer in respect of the first charge, but this was rejected by the trial judge.  When defence counsel was making submissions, the judge made statements such as “By going about the streets with the drugs, is [a person] dealing with drugs?  If it is not dealing with drugs, then what is it?”, “If you were not dealing with it, why would you be going about the streets with it?”, and “If someone goes about the streets with the drugs, what can this be apart from dealing with the drugs?”.  Counsel disagrees with what the judge said, and he submits that merely putting drugs in the shirt pocket was not proof of dealing with the drugs, and that there was no other evidence in the present case to prove that the Applicant had dealt with drugs.

10. In our view, to establish drug trafficking, the prosecution must, for a start, prove beyond reasonable doubt that the defendant possessed the drugs.  Possession is different from ownership.  Possessing a drug includes having the drug on the person with knowledge that it is a drug, and this is known as actual possession.  Another type of possession is constructive possession, which means that the defendant does not have the drug in his hands or on his person, but he has ability and intention to obtain and use the drug when necessary.  Secondly, the prosecution must prove beyond reasonable doubt that the defendant trafficked in the drugs.  The Dangerous Drugs Ordinance 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 give 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.

11. Therefore, as Mr Chan has correctly submitted, mere possession of a drug does not constitute dealing with the drug, unless the only reasonable inference to be drawn in the circumstances is that he who possessed the drug did so for the purpose of trafficking.  To prove that the Applicant dealt with the drugs, there must be evidence to show that he had some other actus reus and mens rea in respect of dealing with the drugs.  Carrying drugs while walking is not sufficient to constitute dealing with the drugs, because a person can only be either static or mobile including walking along the street.  Therefore, the Applicant’s intention in carrying those drugs, as gathered from the surrounding circumstances, also has to be taken into account.

12. In the present case, the trial judge would have erred if he did think that the Applicant, by possessing drugs when he was walking along the street, was dealing with those drugs.  In our view, however, when the judge said that the Applicant was going about the streets with the drugs, he was not making a general statement, but rather referring to the particular circumstances of the Applicant.  In his directions to jury, the judge said:

“If you think that the Applicant did possess those two bags of ‘ice’, you should go on to consider why he was found to have those two bags of ‘ice’ when he was in the street.  …  If you think that carrying those two bags of ‘ice’ in the street was tantamount to dealing with them, if that was dealing with them, then he was trafficking in them.”

13. Viewing the judge’s speech as a whole, the above statements were directed at the allegation that the Applicant was wandering near a public refuse collection chamber at about 8 p.m., with two small bags of drugs on his person, and that subsequently the police found at the Applicant’s home even more drugs as well as some items that could be used for dealing with drugs and a large number of plastic bags.  If the prosecution evidence was true, it could very well show that there were reasons for inferring that the Applicant was dealing with drugs at that place.

14. In our judgment, whether in rejecting the Applicant’s submission of no case to answer or in directing the jury generally in the course of summing-up, the trial judge had not given any erroneous explanation or direction.

15. It is true that, in discussing legal principles with counsel, the judge should refrain from using unnecessary and inappropriate analogies in order to avoid misunderstanding.  That notwithstanding, in light of the prosecution evidence, we are satisfied that there were factual and legal bases to support the trial judge’s ruling that a prima facie case was established against the Applicant on the first charge, and that such evidence and bases also allowed the jury to convict the Applicant on the first charge.  For this reason, the Applicant’s first to third grounds of appeal cannot stand.

16. The fourth and fifth grounds of appeal state that the prosecution evidence revealed that the Applicant might have possessed the drugs in question for the purpose of self-consumption, and hence the trial judge was under a duty to direct the jury to consider that possibility.  In other words, apart from directing the jury on the offence of drug trafficking, the judge should also have reminded the jury that it was open to them to convict the Applicant of the alternative offence of possessing dangerous drugs.  Counsel refers to the Applicant’s responses to the police officers’ questions, in which he said that the foil paper found at his home was “for use when consuming the ‘ice’”, and this, Counsel submits, was evidence that the Applicant possessed the drugs for self-consumption.  Counsel contends that, in respect of the second charge, the trial judge directed the jury in a firm manner that, if they accepted the Applicant’s response to the police regarding the use of the plastic bags and scales found, then they “should not have much difficulty” in concluding that the drugs found were to be used for trafficking.  Counsel submits that this was a misdirection.

17. In the present case, the Applicant’s defence was not that he possessed the drugs in question for self-consumption.  Throughout the trial, he claimed that he had been framed up by the police officers, that the drugs referred to in either of the two charges were never on his person or at his place of residence, that those drugs did not belong to him and had nothing to do with him whatsoever, and that he had never responded to questions by the police.  Apart from the quantity of drugs involved, the trial judge and jury had to take into account the paraphernalia found by the police, including foil paper, two scales, a large number of small plastic bags and anti-damp pellets.  A small quantity of foil paper would no doubt not necessarily be used for consuming drugs, and the anti-damp pellets did not necessarily have anything to do with dealing with or trafficking in drugs.  Similarly, one or two scales might not necessarily be used for dealing with drugs, and a large number of plastic bags might not necessarily be used for packaging drugs.  However, when taken together, the foil paper, anti-damp pellets, scales, plastic bags and the large quantity of drugs found could form cogent evidence that the drugs were being dealt with or trafficked.  Furthermore, the Applicant had never said that he was a drug addict, and there was no evidence that he was consuming the drugs in question.  Therefore, his statement about the foil paper being “for use when consuming the ‘ice’” only served to explain the use of the foil paper and did not serve to demonstrate that the Applicant himself used the foil paper for consuming the drugs he possessed, still less that all the drugs were just there for the Applicant himself to consume.  Moreover, the trial judge had earlier on directed the jury that they could consider convicting the Applicant of the alternative offence of possessing dangerous drugs.  In the circumstances, we see nothing improper for the judge to direct the jury that if they accepted that the drugs and paraphernalia were found at the Applicant’s residence and also accepted his responses to the police, then they could conclude that the drugs were being used for trafficking.

18. The sixth ground of appeal is that, in respect of the lack of fingerprints in the present case, the trial judge misdirected the jury and usurped their function.  Counsel submits that the Applicant had insisted that he did not have any drug on his person and that the drugs found at the unit did not belong to him, and the prosecution had not been able to adduce evidence showing the presence of the Applicant’s fingerprints on the relevant items.  Counsel contends that this was a crucial matter which the jury should have considered.  The directions given by the trial judge in this respect were as follows:

“As for the contention of defence counsel that ‘the prosecution has not made any mention whatsoever of any fingerprint evidence’, it is not the case that a person who has touched any article will have his fingerprint left on that article.  This is a very simple matter.  Take a plastic bag or paper bag as an example.  Between its manufacture and its finally being possessed by someone, the bag must have passed through the hands of many people.  Take this paper bag as an example, people had to cut out sheets of paper, paste them together, process the product and sell it, and so the bag must have passed through the hands of many people.  If fingerprints were left by every one who touched the bag, then there would be so many fingerprints on the bag that you could not distinguish one from another.  Therefore, the presence or lack of fingerprints is a piece of evidence that goes nowhere.  Why do I say that it is a piece of evidence that goes nowhere?  The absence of fingerprints might be due to the fact that the defendant had not touched the item, but then the fact that the defendant had touched an item does not necessarily mean that his fingerprints were left on it, and so this is an ambiguous contention, and you need not have any regard to whether there were fingerprints on the items.”

19. At the hearing of this appeal, Counsel for the Applicant conceded that, apart from the final sentence, the trial judge’s directions as quoted above could not be regarded as erroneous.  Having considered the above directions, we take the view that the judge was merely saying that the evidence regarding a lack of fingerprints was neutral evidence which neither assisted nor prejudiced the prosecution or the defence, and the gist of the final sentence was that whether there were fingerprints was in any event an “ambiguous contention” and, as such, need not be considered by the jury.  This was quite reasonable.  The judge was, in any event, merely expressing his own views, which the jury was not bound to accept.  At the very outset of his directions, the judge had made it very clear that he would, in the course of giving directions, express his own understanding of the evidence and that the jury was not bound to accept his views.  They were free to disregard any view expressed by the judge which they considered unreasonable.  In our judgment, the final sentence quoted above was nothing more than a conclusion that the judge drawn from his own views of the evidence and did not constitute unfairness against the Applicant.  The sixth ground of appeal cannot be sustained.

20. The final ground of appeal stems from the trial judge’s direction that the jury could draw inferences from the testimony, evidence and exhibits and that such inferences must be compelling and also the only reasonable inferences that could be drawn in the circumstances.  Counsel contends that such a direction was erroneous in that the judge had failed to point out that this kind of direction only applied to evidence against a defendant and did not apply to evidence in favour of the defendant.  Counsel submits that where a jury draw a reasonable inference in favour of a defendant, they can act on it and give the defendant the benefit of doubt, and that inference need not be the only inference that can be drawn.

21. In our view, when the trial judge talked about the relevant legal principles in his directions, he was trying to convey the message that, if the jury were to draw an inference from the testimony, evidence and exhibits, that inference must be the only reasonable inference that could be drawn in all the circumstances, which would mean, to an ordinary person, that the inference must be an irresistible and reasonable inference.  Such a direction was proper.  In the present case, no question arose as to the need to draw from the testimony, evidence and exhibits an inference in favour of the Applicant.  At the outset of his directions, the judge had made it very clear that the Applicant did not have to prove anything and that the burden of proof rested solely upon the prosecution.  Therefore, the jury should have clearly understood how to draw inferences from the available evidence.  In our judgment, the judge’s directions in this respect had not resulted in unfairness against the Applicant, nor had they been defective.  For the above reason, this ground of appeal must fail.

22. Viewing the case as a whole, we do not consider the Applicant’s convictions on the first and second charges to be unreasonable, unfair or improper.  None of the various grounds of appeal put forward by the Applicant having been made out, we dismiss his application for leave and affirm the trial judge’s verdicts.