HKSAR v. LAI KWAI PO

CACC 313/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 313 OF 2014

(ON APPEAL FROM DCCC NO. 499 OF 2014)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The appellant was granted leave to appeal by McWalters JA on 1 April 2015, limited to three out of four of his perfected grounds of appeal against conviction. Leave to appeal against sentence was at the same time refused.

2.  On 9 June 2015, we dismissed the appeal and said we would hand down the reasons for our decision in due course.  This we now do.

3.  The appellant was convicted after trial on 1 September 2014 by HH Judge Dufton of an offence of unlawfully trafficking in a dangerous drug, namely 37.27 grammes of a powder containing 27.35 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1).  He had pleaded guilty to a second charge of possession of Part I poisons, namely 41 tablets of dihydro-1, 4-benzodiazepine, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Cap 138 (Charge 2).

4.  The offence was alleged to have been committed on 29 March 2014 at the staircase of 2^nd Floor, 429 Shanghai Street, Mongkok, Kowloon, outside the premises where the appellant was living at the material time.  The appellant’s possession of the Part I poisons was alleged to have been committed at the same time and place.  This appeal is only concerned with the appellant’s conviction in respect of Charge 1.

The prosecution case

5.  The prosecution evidence at trial was not disputed: indeed, the entire prosecution case was proved by way of Admitted Facts. Simply stated, the facts were that at about 5:40 pm on 29 March 2014, the police intercepted the appellant, who was in the company of another man, when he was leaving his home on 2^nd floor, 429 Shanghai Street, Kowloon.  Four resealable plastic bags were found inside a bag he was carrying.  Three of those plastic bags contained ketamine in powder form in the quantities set out in the charge.  The fourth plastic bag contained 6.11 grammes of a powder containing caffeine.  The appellant was arrested and cautioned for trafficking in a dangerous drug to which he replied than he had just bought the drugs.  Later that same day, the appellant was interviewed under caution.  The interview was produced without challenge.  The retail value of the ketamine seized from the appellant was HK$4,397.86.

The defence case

6.  The appellant did not avail himself of his right to give evidence, but relied for his defence on answers he had given in his video recorded interview.  In that interview, the appellant, who was aged 56 at the time, said that he had been a drug addict for a long time consuming many types of drugs, including ketamine and heroin.  He said that he had bought the four plastic bags of dangerous drugs that morning solely for his own consumption.  When asked what the four bags contained, he replied “K powder”; although, in fact, one of the bags was subsequently found on analysis by the Government chemist to contain caffeine, which is neither a dangerous drug nor a Part I poison.  When asked why he was leaving his home with the bags when he was intercepted, he said that he wanted to “find a place randomly” to put them so as to avoid being arrested if they were found at his home.

7.  It was also an Admitted Fact that on 7 April 2014, the appellant was treated in Queen Elizabeth Hospital for severe drug withdrawal symptoms and discharged on 16 April 2014.  The doctors who treated him at the hospital were of the opinion that the appellant had a history of intravenous drug usage.

The issue at trial

8.  The only issue at trial was whether the dangerous drugs found in the appellant’s possession were for his own consumption or for the purpose of trafficking.  The judge was well aware that there was no direct evidence to prove trafficking and that the prosecution relied on the surrounding circumstances to prove the offence:

“There being no direct evidence of actual trafficking, I have examined the circumstances surrounding the arrest of the defendant to determine whether the only inference to draw is that the defendant was trafficking in a dangerous drug.”

Reasons for verdict

9.  In his reasons for verdict, the judge accepted that the appellant was a drug addict although he did not resolve the issue of whether he was addicted to ketamine or merely an occasional or recreational user. So far as the Admitted Fact concerning the appellant’s hospitalisation and the opinion of the doctors who attended him as to his intravenous drug usage was concerned, the judge found that such intravenous drug usage was consistent with heroin addiction.  Having considered the expert opinion of Professor Lee which had been given to, and accepted by, the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 (an authority which was produced to the judge and discussed during closing submissions), the judge considered that 27.35 grammes of ketamine narcotic would provide more than 109 doses for a recreational user or a supply of between 13 to 27 days for an addict.

10.  The judge went into some detail as to the inferences which could or could not be drawn from the fact that the appellant was leaving his flat with the drugs, from the quantity and packaging of the drugs and from the average consumption and dosages of ketamine abusers.  Having analysed those issues, he stated a summary of the particular matters he took into account, which were:

(1) that the appellant was intercepted when he was leaving home;

(2) that the quantity he possessed was 27.35 grammes of ketamine narcotic contained in 3 separate bags; and

(3) the dosages which this quantity of ketamine narcotic would yield for a recreational user and an addict.

Having rejected the appellant’s exculpatory assertions and explanations in his record of interview, the judge said he was satisfied that the only inference to draw was that the defendant possessed the ketamine at the time for the purpose of unlawful trafficking.

11.  The judge found as follows:

“I am satisfied in transporting the ketamine from his home the defendant was dealing with the ketamine and was not taking the ketamine out from his home for the purpose of enabling him, at some future time, to consume. I find inherently improbable that a user of ketamine, whether a recreational user or an addict, would take such a quantity out from his home and risk being arrested on the street with the drugs.

In drawing the inference that the defendant possessed the ketamine for the purpose of trafficking I have placed no weight on the packaging of the ketamine in three separate bags together with a bag containing caffeine. Nor have I placed any weight on the agreed retail value of $4,397.86 there being no evidence before me as to the basis of this value, for example whether this is based on bulk purchase or the price per gramme or an even smaller quantity.”

The grounds of appeal against conviction

12.  On behalf of the appellant, Miss Sezen Chong, has advanced three matters on appeal.  First, she takes issue with the judge’s finding that the addiction which had resulted in the appellant’s hospitalisation for 9 days as a result of his previous history of intravenous drug usage was a heroin addiction.  She argues that it could just as well have been a ketamine addiction.  Accordingly, in as much as the judge relied on the report of Professor Lee’s opinion in Hii Siew Cheng to make this finding, he wrongly relied upon material which was not evidence properly adduced before the court.

13.  Secondly, Ms Chong submits that the judge wrongly relied upon what he considered to be a lie in the appellant’s record of interview, which he said was supportive of the prosecution case, when there was no independent evidence to prove the lie.  Therefore, it could not in law support the prosecution case.  This matter derives from a passage which follows on immediately after the passage recited at para 11 supra.  The judge said as follows:

“In addition I am satisfied that when the defendant told the police in the video interview he took the drugs out to avoid being arrested at home and that he would place them somewhere randomly this was a deliberate and material lie designed to account for why he was taking the ketamine out from his home, which lie supports the prosecution case (see HKSAR v Wong Tai Shing CACC 234/2005 (paragraph 17) and HKSAR v Wong Tai Shing CACC 259/2006 (paragraph 14).”

14.  Thirdly, it is argued that the evidence was not sufficient to draw the inference that the appellant was guilty of trafficking rather than simple possession.

Consideration

15.  Ms Chong acknowledged that a judge would be entitled to look at the expert opinion evidence accepted by the Court in Hii Siew Cheng so far as the dosages required by addicts or recreational users were concerned; an approach endorsed by the Court in HKSAR v Chau Leong Wa (unrep., CACC 51/2012, 13 September 2012).  However, she argued that such entitlement did not extend to expressions of opinion about the methods by which, in particular, ketamine may be ingested.  It was submitted that the judge had no warrant for inferring that the appellant’s intravenous drug usage was concerned with heroin only and not with ketamine.

16.  With respect, it is a notorious fact in Hong Kong that heroin is abused by either “chasing the dragon” (inhalation) or by injection.  Furthermore, Professor Lee, whose opinion was accepted by the Court in Hii Siew Cheng at 19-20 was that, although intravenous use of ketamine was reported in Western literature, such a method of ingestion of this particular drug was very rare in Hong Kong and he himself had never encountered an intravenous or muscular ketamine user.  Nor has any member of this Court come across such a case.  In any event, so far as dosages are concerned, Professor Li explained, at 29, that whereas the average recreational dose ranged from 10 to 250 milligrammes when taken nasally, the dose would only be 10 to 100 milligrammes when taken intramuscularly.  So, if the argument is that the appellant was addicted to ketamine and took it intravenously, it would seem that the number of dosages he would have been able to obtain from the quantity concerned would have been rather greater than the judge assumed.

17.  The appellant did not, however, give evidence about his consumption of ketamine or his method of ingestion.  In our judgment, the judge was entitled to conclude that the withdrawal symptoms which had caused the appellant to remain in hospital for some 9 days were occasioned by his addiction to, and intravenous use of, heroin; a drug which the appellant acknowledged in his record of interview that he used.

18.  However, the argument is somewhat redundant because the judge appears to have proceeded on the basis that the quantity could have yielded either 109 doses for the recreational user or between 13 and 27 days for the addict.  Either way, these were sizeable quantities, albeit not determinative of the issue of trafficking rather than possession.

19.  In respect of the second matter advanced by Ms Chong concerning the lie apparently relied upon by the judge, we think that Ms Chong has a valid point.  It would appear that there was no independent evidence of the lie and nor was it admitted by the appellant to be a lie, in which case it could not as a matter of law be supportive of the prosecution case: see Yuen Kwai Choi v HKSAR [2003] 2 HKLRD 176, at 188H-J.  However, we say the lie was apparently relied upon by the judge because by the time he came to discuss the lie, the judge had already determined that he was satisfied, for reasons he had earlier discussed, that the only inference to draw was that the appellant possessed the ketamine for the purposes of trafficking.  The ‘supportive lie’ comes after that finding and did not play any role in the judge’s essential drawing of that inference from the evidence.  Indeed, it is prefaced by the words “In addition” and clearly the judge was saying, having already made the finding that the appellant was trafficking in heroin, the lie was an additional point in the prosecution favour.

20.  In fact, the judge did not need to add this matter at all.  Perhaps, as Mr Sean for the respondent submits, the judge was merely stating the obvious that, having rejected the appellant’s account as to why he was leaving home with the drugs, there could in reality only be one other reason why he would be doing so.  However, we agree that, whilst it may have been a lie, it could not as, a matter of law, support the prosecution case.

21.  Nevertheless, we are satisfied that the lie did not play any part in the judge’s process of reasoning which drove him to find that the appellant was trafficking in the drugs concerned.  That much is clear from the structure of the judge’s reasoning, its position in the Reasons for Verdict and from the way he has expressed himself.  In our judgment, because the error of law had no bearing on the conviction, it did not materially affect the outcome of the trial and therefore provides no basis for allowing the appeal.

22.  Finally, it is said that it was not an irresistible inference on the evidence available that the appellant was trafficking in the drugs in question.  On this issue, Ms Chong has made an attractive submission, marshalling all the points that could properly be made on the appellant’s behalf from the circumstances and the appellant’s answers in his record of interview.

23.  However, we should also say that the judge made an extremely thorough and reasoned analysis of the evidence, giving cogent reasons for the conclusion to which he came.  In particular, the judge said this:

“Further I do not find credible the defendant’s explanation as to why he had the ketamine with him when he was leaving his home. I do not find credible that the defendant would after buying ketamine, intending to consume the ketamine, take the ketamine home only to then, after sleeping, take the ketamine out to avoid being arrested at home. As (prosecuting counsel) submits, if the defendant thought his home was not safe why take them home in the first place.”

24.  The judge also made the finding that the assertion by the appellant in his video record of interview that he would place the ketamine somewhere randomly “beggars belief”.  He continued:

“Whether a recreational user or an addict of ketamine, the quantity was comparatively substantial. I find it inherently improbable that the defendant would take out such a quantity of ketamine if the ketamine was for his own use and risk being arrested on the street with the drugs. Equally I do not find credible (that) the defendant would leave home to get something to eat taking with him such a quantity of ketamine.”

25.  In our view, having not given evidence in support of the exculpatory assertions made in his record of interview so that they might be tested in cross examination, the appellant cannot complain if the judge, in assessing those assertions, decided to attach no weight to them for the reasons he gave.  Once the appellant’s assertions were rejected, there was nothing to undermine the obvious inference which flowed from the objective evidence that the appellant was on his way out of his flat with a fairly substantial quantity of drugs, in one of which bags was the seemingly innocuous substance caffeine which the appellant had linked together with the other three as “K powder”, and when there was nothing of any significance (such as, perhaps, paraphernalia connected with the consumption of ketamine in powder form) found in his premises by the police.

26.  The judge was entitled to draw the inference he drew from the available evidence and to come to the decision that the appellant was trafficking in dangerous drugs.

Conclusion

27.  For these reasons, we dismissed the appellant’s appeal against conviction.