HKSAR v. CHEUNG CHING FAI

CACC443/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 443 OF 2005

(ON APPEAL FROM DCCC582/2005)

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REASONS FOR JUDGMENT

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Lunn J (giving the judgment of the Court) :

1. The applicant, who was unrepresented, sought leave to appeal out of time against both his convictions and the sentences imposed in consequence.  At the hearing we dismissed the application for leave to appeal out of time against conviction and allowed, in part, the application for leave to appeal against sentence out of time, as a matter of principle, in that we reduced the sentence of imprisonment imposed in respect of Charge 1 by two months’ imprisonment, to a term of five years’ imprisonment.  In the result, the total term of imprisonment imposed on the applicant remained the same, namely five years and two months’ imprisonment.  We indicated that we would hand down our reasons in due course.  That we do now.

The trial

2. The applicant was convicted, after a trial before HHJ Whaley, of two charges of unlawfully trafficking in a dangerous drug, namely heroin hydrochloride.  Both of the charges alleged unlawful trafficking in a dangerous drug on 13 March 2005 : by Charge 1, in respect of 40.13 gm of a mixture containing 9.08 gm of heroin hydrochloride whilst in the street in Tong Tau Po Tsuen, Tai Shu Ha Road East in Yuen Long and by Charge 2, in respect of 77.33 gm of a mixture containing 16.7 gm of heroin hydrochloride inside nearby premises on the ground floor of 68A, Tong Tau Po Tsuen.

The prosecution case

3. The prosecution case was that the defendant had been stopped in the street at about 4:30 p.m. in the afternoon by police officers when he made to depart after he had appeared to notice them.  He was seen to throw three keys on a key chain to the ground.  PC 1666 testified that when he searched the applicant he had found a total of 47 straws contained in transparent plastic bags inside tissue paper in a pocket of the applicant’s jacket.  In the straws there was a total of 40.13 gm of a mixture containing 9.08 gm of heroin hydrochloride.  What was counted later to be more than $36,000 was found stuffed in various pockets of the jacket.  In response to being arrested and cautioned in respect of the offence of unlawful possession of dangerous drugs, the applicant said :

“These things are just for my own consumption.”

4. A little while later the applicant told the police officers that he resided nearby at the address at which subsequently other dangerous drugs were found.  He said :

“There is simply no difference if I have screwed up with several tens of straws or several hundreds of straws, sooner or later you people would find them.”

Entry to the premises was made by use of a key found on the applicant.  Inside the premises, contained in two plastic boxes, were found five transparent plastic bags in which there were a total of 90 plastics straws, all of which contained a quantity of heroin hydrochloride, 16.7 gm in total.  On a table was found a tenancy agreement in which the applicant was named as tenant of the premises.  Having been arrested and cautioned in respect of the offence of possession of those dangerous drugs the applicant said :

“So many of them here, it’s only several tens of straws, nothing else.”

5. PC 58980 and Sgt 17012 gave evidence in which they confirmed various aspects of PC 1666’s evidence in his dealings with the applicant and the search of the premises.  Cheung Kit Hung testified that he had let the premises to the applicant on 20 November 2004 on a two-year lease.  He gave him the keys to the premises.  Thereafter, it was always the applicant who paid him the rent due each month.  Also, he said that the applicant frequented the village.

6. DSPC 19293 testified of his seizure of various exhibits within the premises including tinfoil, nail clippers, and unused plastic gloves and drinking straws.  Inside a handbag, he found a quantity of unused re-sealable plastic bags.  He said that in his experience plastic gloves were often use by those handling dangerous drugs as were nail clippers, the latter being used to cut plastic straws into shorter lengths into which dangerous drugs were deposited.  Traces of dangerous drugs were found at the opening point of the nail clippers.

The defence case

7. The applicant gave evidence.  He said that at the date of his arrest he lived in Tin Shui Wai and, although he was the tenant of the premises at Ground Floor, No. 68A Tong Tau Po Tsuen, he did not live there rather it was his girlfriend who did so.  It was at her request that he had found and leased the premises and thereafter paid the rent to the landlord. He visited her three or more times a week.

8. The applicant said that all the seven keys, together with an amount of only between $2,500 and $3,000 had been found on him.  He had not thrown three keys to the premises at No. 68A onto the ground nor had any straws containing dangerous drugs been found on him.  He was taken to a nearby car park where, as he had told the police officers, his girlfriend was waiting for him.  There, in face of threats by the police officers to prosecute his girlfriend he said that he reached an arrangement with the sergeant that he would admit possession of the dangerous drugs, if his girlfriend was released and he was charged with possession only of the dangerous of drugs not unlawful trafficking.

9. The applicant testified that the police used the keys found on him to enter premises at No. 68A.  He had told them that he was not living there with his girlfriend but that he lived in Tin Shui Wai.  He remained at the main door where he was when PC 1666 reported to the sergeant that two boxes containing 90 straws had been found. He testified that he had no idea of presence of these dangerous drugs in the premises.  The handbag, in which the re-sealable plastic bags and notebook had been found, was not his nor were the unused gloves and tinfoil.  He did not know to whom they belonged.  During the search of the house he had retrieved more than $30,000 from the bedroom in order to be in a position to meet bail terms.  He denied having made the oral statements described in evidence by the police officers.  In re-examination, the applicant admitted that he and his girlfriend used to consume heroin at the premises several times a week and for that purpose kept a supply of heroin there.

The reasons for verdict

10. The judge stated that he found the applicant to be “ not a good witness”.  In particular, he found that the applicant was not telling the truth on various important issues in the case.  By contrast, he found of the police officers that they :

“gave their evidence straightforwardly and well.”

He found, contrary to the evidence of the applicant, that the applicant was living at the premises at No. 68A, although he accepted that he also had premises elsewhere, at Tin Shui Wai.  He accepted that the applicant’s girlfriend stayed at the premises at No. 68A from time to time.  The judge accepted the evidence of the police officers, that the applicant had been seen to discard the bunch of three keys to the premises at No. 68A and that a search conducted of the applicant shortly afterwards revealed the 47 straws containing heroin hydrochloride, particularised in Charge 1, together with over $36,000 stuffed in the pockets of his jacket.  Furthermore, he found that the applicant had made the oral statement testified to by the police officers, including the claim that those dangerous drugs were for his own consumption.  Finally, the judge accepted the applicant’s admission in testimony that together with his girlfriend he had consumed heroin on the premises several times a week and kept a store of heroin on the premises for that purpose.

11. In light of those findings of fact, the remaining question addressed by the judge was : whether or not it was proved beyond reasonable doubt that the applicant had unlawfully trafficked in the dangerous drugs of which he had been found to be possessed?  In answering that question in the affirmative, the judge stated that he did so having regard to all the facts in the case but in particular to :

(i) the large number of straws containing the heroin hydrochloride stipulated in the particulars of the charges, namely more than 25 gm;

(ii) the “street value” of those dangerous drugs, namely $26,366; and

(iii) the “paraphernalia” found in the premises.

Application for leave to appeal against conviction out of time

12. The applicant was convicted of these two charges on 12 September 2005.  He lodged a notice of application for leave to appeal against conviction on 18 October 2005.  Notwithstanding the fact that the application was out of time by a few days we granted him leave to make the application.

Grounds of appeal against conviction

13. The applicant seeks to advance multiple home-made grounds of appeal against conviction that are encompassed in Form XI, in a letter to the court dated 24 February 2006 and in a further communication with this court dated 27 March 2006 and entitled “Detailed Grounds of appeal against conviction and sentence”.  In the latter document, a 5½-page handwritten composite set of grounds of appeal against conviction, the applicant sets out detailed grounds of appeal. 

(1) By Ground 1 he complains that the prosecution erred in laying charges of unlawful trafficking, rather than possession of the dangerous drugs.

(2) By Ground 2 he complains that the judge erred :

(a) in failing to have regard to the fact that the average weight of the narcotic in the quantities of heroin hydrochloride in each straw in the straws the subject of Charge 1 were different from those in the straws the subject of Charge 2; and

(b) in light of the judge’s acceptance, for purposes of sentencing, that the applicant possessed half of the total of dangerous drugs for self consumption failing to amend one or both charges to aver possession only.

(3) Ground 3 makes reference to material contained in the probation report obtained after conviction.

(4) By Ground 4 it is submitted that the judge failed to consider that the drugs the subject of Charge 2, namely the ones found on the premises were of a different average weight of heroin hydrochloride per straw when compared with the contents of the straws the subject of Charge 1 and, therefore, had been bought earlier for his own consumption : which difference also negatived the drawing of the inference that the heroin hydrochloride in the straws the subject of Charge 1 had been taken from the premises into the outside world for the purpose of sale or otherwise for trafficking.  The latter submission is repeated by Ground 9.

(5) Ground 8 refers to the judge’s determination, expressed in his reasons for sentence, accepting that an element of the dangerous drugs were for self-consumption.

(6) By Grounds 5 to 7 the applicant merely describes matters that he might have given in evidence during his testimony at the trial had he chosen to do so but did not.

(7) By Ground 3 of the grounds of appeal attached to Form XI the applicant invites this court to note that the notebook of Sgt 17012 refers to the 47 straws having been found on the applicant’s girlfriend, Wong Kam Ha, not the applicant.

The respondent’s submissions

14. In his written submissions Mr Shiu, for the respondent, submits that the case against the applicant was overwhelming in respect of both the charges of which he was convicted.  He invites this court to note of the evidence led at trial :

“… the applicant was found in the street in possession of 47 straws of heroin hydrochloride and over $36,000 in cash : 90 straws of heroin hydrochloride were found in premises of which he was tenant and of which he was possessed of keys together with plastic gloves and multiple unused re-sealable plastic bags : the estimated street value of drugs was over $26,000 and the applicant was an air-conditioning technician.”

15. Of the judge’s finding that the applicant was possessed of some of the total amount of heroin hydrochloride for the purposes of self-consumption Mr Shiu submits that it was perfectly permissible for the judge nevertheless to be satisfied that the applicant had unlawfully trafficked in the balance of the heroin hydrochloride (see the judgment of the Court of Appeal in HKSAR v. Wong Suet Hauand another [2002] 1 HKLR 69 at page 77I, paragraph 29).

16. Of the entry in Sergeant 17012’s notebook Mr Shiu points out, by reference to page 12Q onwards in the Reasons for Verdict, that the sergeant was not present at the time of the seizure of the 47 straws that he received a report only afterwards.

The application for leave to appeal against conviction

17. Clearly, the evidence against the applicant in respect of the two charges of unlawful trafficking in a dangerous drug was overwhelming.  Simply, he was caught “red-handed”.  He was in possession of 47 straws of heroin hydrochloride together with no less than $36,000 in cash.  He was an air-conditioning technician.  With keys found on the applicant the door to the premises, of which he was tenant, was opened and inside the premises was found another 90 straws of heroin hydrochloride, plastic gloves and multiple unused re-sealable plastic bags.

18. The Reasons for Verdict do not condescend to any detail of the applicant’s admissions at a late stage in his testimony at trial as to his consumption of heroin hydrochloride and his use of the premises at No. 68A to do so with his girlfriend.  It is clear, nevertheless, that the judge specifically considered the issue of self-consumption in respect of whether or not the applicant unlawfully trafficked in the dangerous drugs.  His finding that the applicant was guilty of unlawfully trafficking in the dangerous drugs as alleged in the two charges is in no way inconsistent with his subsequent finding, for purposes of sentencing, that the applicant was in possession only of 13 gm of the total of more than 25 gm of heroin hydrochloride and that he unlawfully trafficked in the balance.  As Mr Shiu has pointed out such an approach is perfectly valid, citing as he does the judgment of this court in HKSAR v. Wong Suet Hau at page 77I :

“The principle is of course well-established that where a part of the drugs referred to in a drug trafficking charge is proved to have been possessed by a defendant for the purposes of trafficking, this will be a sufficient basis for a finding of guilt on a charge of trafficking, even though a portion of the same drugs is or may have been for the defendant’s personal consumption.”

19. There is no merit whatsoever in any of the various heads of appeal that the applicant seeks leave to argue.  The fact that the average weight of heroin hydrochloride in each of the 47 straws found on the applicant is very slightly different from the average weight of heroin hydrochloride found in the 90 straws found in the premises is irrelevant.  Accordingly, we refused the application for leave to appeal against conviction out of time.

Reasons for sentence

20. On each charge the judge imposed on the applicant a sentence of five years and two months’ imprisonment, which sentences he ordered to run concurrently.  The judge noted that the applicant had no less than 20 previous convictions, 14 of which were in respect of offences of possession of a dangerous drug and two of which were for the very same offence of which he had been convicted, namely unlawful trafficking in a dangerous drug.  Moreover, in the period in and between 1993 and 2001 the applicant had been sent to a Drug Addiction Treatment Centre on no less than five occasions.

21. The judge stated that he approached sentencing the applicant on the basis of the total quantity of the dangerous drugs in which the applicant had unlawfully trafficked as particularised in the two charges, namely 25.78 gm of heroin hydrochloride.  However, he stated that accepted that some of the dangerous drugs were for self-consumption by the applicant and by his girlfriend.  Acknowledging that it was impossible to know how much of the heroin hydrochloride was for self-consumption, nevertheless he stated that he took an “educated guess” and proceeded to sentence on the basis that 13 gm was for self-consumption.  Accordingly, the judge sentenced the applicant on the basis that the total amount of heroin hydrochloride in which he had unlawfully trafficked was 12.78 gm.  He stated that he adopted the guidelines set out in the judgment of this court in R. v. Lau Tak Ming[1990] 2 HKLR 370 and sentenced the applicant on each charge to a term of five years and two months’ imprisonment, the sentences to be served concurrently with each other.

Application for leave to apply for leave to appeal against sentence out of time

22. Although the sentences were imposed on the applicant on 27 September 2005 and although he lodged an application for leave to appeal against conviction on 18 October 2005 he did not lodge a Form XI notice applying for an extension of time in which to give notice of application for leave to appeal against sentence until 13 March 2006, by which stage he was many months out of time for lodging the application.  The applicant explained that the delay was caused by the passage of time before he was told in February 2006 that his application for legal aid had been refused.

Grounds of appeal against sentence

23. The Form XI includes, in substance, the following ground of appeal against sentence : in light of the guidelines for sentence in respect of unlawful trafficking in heroin hydrochloride and in view of the fact that the quantity of heroin hydrorochloride stipulated in Charge 1 was only 9.08 gm the sentence of five years and two months’ imprisonment imposed in respect of that charge was greater than suggested in the guidelines, namely for quantities of up to 10 gm two to five years’ imprisonment, and was excessive.

Respondent’s submissions in respect of sentence

24. In his written submissions Mr Shiu submits that the judge erred in sentencing the applicant in not taking into account the fact that he had determined that the applicant was in possession only of a significant amount of heroin hydrochloride, namely 13 gm, and then going on to consider and giving weight to the factors adverted to in the judgment of this court in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69 at pages 79I – 80A-E and, in particular, the specific need for caution identified in the following passage :

“However, in doing so, that judge should keep well in mind :

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment :

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor(see : HKSAR V Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.”

25. Mr Shiu submits that if the judge had approached the task of sentencing with those considerations in mind any reduction in sentence from the sentence that ought to have been imposed on the basis of unlawful trafficking in the total amount of 25.78 gm of heroin hydrochloride, to reflect a finding that the applicant had 13 gm of the total amount of heroin hydrochloride for self-consumption only, would have been very slight or non-existent.  In the result, he submits that the judge failed to impose any element of sentence at all in respect of the applicant’s possession of 13 gm of heroin hydrochloride of which he was found in possession only.

Sentence

26. The judgment of this court in HKSAR v. Wong Suet Hau addresses matters relevant to a trial judge required to sentence in circumstances where part only of the total amount of dangerous drugs were unlawfully trafficked and part possessed only.  In particular, as Mr Shiu pointed out, judges are reminded that regard would have to be given to the culpability arising from possession only of a quantity of dangerous drugs (pages 79J – 80B) :

“However, in doing so, that judge should keep well in mind :

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment :

(ii) the requirement to enhance possession of drugs to reflect, where appropriate, the ‘latent risk’ factor(see : HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation…”

27. In his Reasons for Sentence, the judge has not adverted at all to a consideration of the appropriate element of sentence to be imposed in respect of the quantity of dangerous drugs possessed only by the applicant, rather than the quantity in which he unlawfully trafficked.  It is to be noted that in the judgment of this court delivered by Stock JA in HKSAR v. Mok Cho Tik(unreported)the court expressed the view (paragraph 17) :

“... the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months,(and that this is the range that has been adopted particularly for cases in the District and High Court).  But that is not the be all and end all of the appropriate starting point.  It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary : and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Obviously the quantity will be the main governing factor which will determine where the starting point will lie.  If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.  The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff.  Amongst the obvious factors be taken into account are whether the offender is in employment : whether the drugs are kept in place to which others have access : whether the offender has convictions for trafficking : and of course the quantity of drugs.  The full circumstances of the risk must be assessed.”

28. Although the judge stated in terms in his Reasons for Verdict that the applicant had a poor criminal record, including two convictions for unlawfully trafficked in dangerous drugs and 14 convictions for simple possession of dangerous drugs he did not go on to state whether or not he took that fact into account in arriving at the appropriate starting point for sentence for the applicant.  It is well established that this factor is relevant to the sentence to be imposed.  In the judgment of this court, delivered by Stuart-Moore VP, in HKSAR v. Chan Pui Chi [1993] 3 HKC 848 the relevance of persistent re-offending in the same offence to the sentence to be imposed for yet another similar offence was addressed thus (page 851F-G) :

“This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and court’s duty to protect the public on the other.”

29. We have no doubt, that if the judge had approached the task of sentencing having regard to these relevant considerations in arriving at the appropriate sentences of imprisonment to be imposed on the applicant he would have realised and so found that any reduction to be afforded to the applicant was offset by the element of sentence that was required to be imposed to reflect the dangerous drugs of which the applicant was possessed only together with an element to reflect the “latent risk” factor.

30. If the judge had approached the matter in that way, we have no doubt that he would have concluded that the appropriate sentence to be imposed in total was six, or slightly more years’ imprisonment.  To reflect the differing amounts of heroin hydrochloride stipulated in the respective charges it would have been appropriate to sentence the applicant to five years’ imprisonment in respect of Charge 1 and six years’ imprisonment in respect of Charge 2, each sentence to run concurrently with the other.

Conclusion

31. In the result, although the applicant indicated that he did not wish to pursue his application, we allowed the application for leave to appeal out of time against sentence and, treating the hearing of the application as the hearing of the appeal, reduced the term of imprisonment imposed in respect of Charge 1 by two months’ imprisonment to five years’ imprisonment.  In those circumstances, we made no order in respect of the sentence imposed on Charge 2.  Accordingly, the total sentence of imprisonment imposed on the applicant remains five years and two months’ imprisonment.  The applicant is fortunate to have benefited from the imposition of a lesser total sentence of imprisonment than that which ought to have been imposed by the judge.