HKSAR v. CHUI YUET KWAN ADY

CACC 404/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 404 OF 2014

(ON APPEAL FROM DCCC 445 OF 2014)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant appeared before the District Court on a Charge Sheet containing charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance and possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant pleaded guilty to the second charge of possession of a dangerous drug which alleged that on 20 February 2014 at Room 416, Man Hong House (Block C1 & C2), Model Housing Estate, Quarry Bay, she had in her possession a dangerous drug, namely 4 plastic bags containing traces of ketamine.  This address was the applicant’s place of residence.

3.  The applicant pleaded not guilty to the first charge which alleged that on the same day outside No. 2, Marsh Road, Wanchai the applicant trafficked in 10.34 grammes of a crystalline solid containing 10.08 grammes of methamphetamine hydrochloride.

4.  On 19 November 2014 after trial before District Judge Dufton (“the judge”) the applicant was convicted of the first charge.  On the same day she was sentenced to a total sentence of 6 years 9 months’ imprisonment.  This was in fact the sentence for the first charge, the sentence of 2 months’ imprisonment for the second charge being ordered to be served concurrently with the sentence for the first charge.

5.  The applicant applied for leave to appeal against conviction and sentence but subsequently abandoned the application in respect of her sentence.  At the hearing of the application for leave to appeal against conviction I dismissed the application and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The prosecution case

6.  The prosecution case was that at around 3:38 pm on 20 February 2014 the police intercepted the applicant outside an amusement game centre at No. 2 Marsh Road, Wanchai. The applicant was found in possession of two resealable plastic bags each containing “ice” and one empty resealable plastic bag containing eleven smaller empty resealable plastic bags.  Under caution the applicant said the “ice” was for her own consumption.  These dangerous drugs are the subject of the first charge. 

7.  In the evening the applicant was taken to her home where the police found four plastic bags each containing traces of ketamine.  These dangerous drugs are the subject of charge 2.

8.  The arrest of the applicant and the finding of the “ice” and plastic bags were admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.  Also admitted was the fact that the police seized from the applicant a quantity of money in different currencies. The cash was $526.4 in Hong Kong dollars, $300 in Taiwan dollars, $10 in RMB and $10 in Macau dollars and $40 in old Hong Kong dollars.  The applicant also had seized from her two mobile phones.  It was an admitted fact that the street value of the “ice” was HK$4,621.98.

9.  The applicant also admitted facts in respect of the search of her home and what was found there and also that she subsequently gave three video-recorded interviews under caution which were voluntary.  In the course of these interviews the applicant maintained that the “ice” that was the subject of the first charge was for her own consumption.

10.  The only issue in the case was whether the applicant was trafficking in the “ice” or whether she in fact had it for her own consumption.  To assist the court in resolving this issue the prosecution called Dr Tang Wai Kwong to give expert evidence on the consumption of “ice” by drug abusers.  Dr Tang adopted as part of his evidence a report that he had compiled.  The judge accepted Dr Tang as an expert and allowed him to give evidence on this subject. 

11.  Dr Tang acknowledged that the consumption rate of “ice” is highly variable between abusers and that there is a lack of data on daily “ice” consumption among abusers in Hong Kong.  In giving his opinion Dr Tang relied on a study conducted in the Mainland.  The conclusion of this study of ethnic Chinese abusers was that their daily consumption of “ice” would range from 0.1 gramme to 2 grammes with an average daily dose of 0.13 gramme.  Further, 87% of abusers used less than 0.2 gramme.  Dr Tang was of the opinion that a person who had abused drugs for 3 months, 2-3 times per week, was a light user.  He was also of the opinion that the average daily use based on a much longer duration of use would be higher than the dosage for someone who had been abusing drugs for only 3 months.  Dr Tang regarded the Mainland study as accurate and reliable. 

12.  Applying the average daily consumption rate to the amount of “ice” that was found on the applicant Dr Tang was of the opinion that this would last the applicant 77.5 days.  The “ice” would last longer in the case of a lighter user who had abused drugs for only 3 months, 2-3 times per week, and would last a shorter period of time if the average is at the upper range of 0.5 gramme.  The upper range of 0.5 gramme was a figure that was mentioned by Dr Tse Man Li, Consultant and Deputy Director of the Hong Kong Poison Information Centre, who had given evidence before the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  In that case the average abuse dosage for new or infrequent users of “ice” was said to be in the range of 0.05 to 0.1 gramme per day and for regular users the average daily consumption was said to be in the range of 0.1 to 0.5 gramme. 

The defence evidence

13.  The applicant elected to give evidence but called no other witnesses on her behalf.  She testified that she was aged 37, was single and worked as a hair dresser earning a basic salary about $8,000 per month, plus a bonus.  She said she lived with her family, did not have to pay rent and her living expenses included telephone bills, transportation, lunch and cigarettes.  She said these expenses would cost her about $2,000 per month leaving her with around $5,000 to spend each month. 

14.  The applicant testified she took both “ice” and ketamine.  She said she first took “ice” when she was 16 years of age and stopped when she was 21. However, about two years ago, after her father died, the applicant resumed her consumption of “ice”.  She said that at first she took “ice” more frequently, about 5-6 times per week for half a year, then, over the next year to year and a half, she started to take less “ice”, about 2‑3 times per week.  She was cross-examined on how she consumed “ice” and when she said that she used a pot and a glass she was asked where she concealed those items as nothing of that nature was found by the police when searching her flat.  She said she concealed these items in the toilet and the police did not look there when searching her flat.

15.  As for her consumption of ketamine, the applicant said she first started taking this drug 4 years ago and would take it 4-5 times per week, when she was having fun or when she was feeling unhappy. 

16.  The applicant said on the day of her arrest she went to Causeway Bay to purchase “ice”.  The applicant said that she purchased the “ice” from a person by the name of Ah Fai around 2:45 pm that day.  She said she initially bought one bag for $1,000 but when Ah Fai enquired of her if she would like to buy more she agreed and paid $1,500 for a second bag of “ice”.  The applicant said she then put the “ice” in her trouser’s pocket and walked towards Wanchai.  She said Ah Fai followed her. 

17.  Because she was afraid that Ah Fai would find out where she lived the applicant went into an amusement game centre to play video games and when Ah Fai was not paying attention to her she took the opportunity to leave.  As she was leaving she was intercepted and arrested by the police. 

18.  The applicant was asked why she agreed to buy so much “ice” and she said it was because the “ice” was cheap.  She claimed that the “ice” would have lasted her about two months.  In explanation for the presence of twelve empty plastic bags in her handbag she said she put them there because she thought they were useful and intended to use them for keeping things such as a SIM card, a SD card, earrings and damaged accessories such as chains.  She denied the plastic bags were carried by her for the purpose of reselling the “ice”.

The Reasons for Verdict

19.  The judge said he had no hesitation in rejecting the applicant’s evidence.  He said he did not find her evidence credible.  Her evidence was that she had first started taking “ice” at age 16, continued through to age 21 and then stopped taking it until the death of her father about 2 years previously.  However, in her first and third video interviews she maintained that she had been taking “ice” for only three months.  In her evidence she explained this discrepancy by saying that she had stopped taking drugs for a period of time and then resumed her drug taking.

20.  The judge also found incredible the applicant’s evidence that the “ice” would have lasted her for two months.  This was inconsistent with what she told the police in the third video interview that the drugs would last around half to one month. 

21.  Likewise the judge found the applicant’s explanation for the presence of the twelve empty plastic bags in her handbag as not credible.  Nor did the judge find credible her claim that the trafficker who sold her the drugs would then follow her to the amusement game centre thereby increasing the risk of him being arrested if she was stopped by the police.  Nor did the judge find credible the applicant’s explanation that she was going to go to Kowloon to buy a device for smoking “ice” after she left the amusement game centre.  He said that he found it inherently improbable that a drug user who had just bought a relatively large quantity of “ice” would go to an amusement game centre to play video games and then go shopping rather than immediately going home.

22.  Notwithstanding that the judge rejected the applicant’s evidence he reminded himself that this was not determinative of the issue he had to address.  He therefore went on to consider the evidence adduced by the prosecution that was relevant to the issue of whether an inference could be drawn that the applicant was trafficking in the “ice”.  He first turned to the quantity of the drugs to see whether the amount of drugs was relevant to whether an inference of trafficking could be drawn.  He discussed the evidence of Dr Tang which he accepted and which would indicate that the quantity of drugs would last the applicant 77.5 days if the average daily consumption was applied to the amount found in her possession.

23.  The judge then referred to the 11 empty small plastic bags found inside a larger empty plastic bag in the applicant’s handbag and noted that these were clearly suitable for further packaging of the “ice”.

24.  The judge then said that he took the following into account in concluding that he was satisfied so that he was sure that the only inference to draw is that the applicant possessed the “ice” for the purpose of trafficking:

(i) the applicant was stopped on the street;

(ii) the applicant was found in possession of 10.08 grammes of “ice”;

(iii) this quantity of “ice” would last for 77.5 days for an average abuser and longer for a light user thereby making this a considerable quantity for a light user or an average user to possess; and

(iv) the applicant was also found in possession of twelve empty plastic bags suitable for further packaging of the “ice”.

25.  The judge said that he was satisfied that the applicant was dealing with the “ice” and was not in possession of it for the purpose of her future consumption.  He said that in drawing this inference he placed no weight on the packaging of the “ice” in two separate bags, nor on its admitted street value.  He also took into account everything said on behalf of the applicant by her counsel including the point that no weighing scale for dividing the “ice” was found on her, no large amount of cash was found on her or at her home and no phone records were produced to show her communicating with others shortly before her arrest.  He also took into account that there had been no evidence placed before him to suggest that amusement game centres of the kind where the applicant was arrested were places where traffickers or purchasers of drugs resorted.  He thereupon convicted the applicant of the first charge of trafficking in a dangerous drug.     

The grounds of appeal

26.  There are three grounds of appeal.  The first ground is that the judge erred in finding that there is sufficient evidence from which he could draw the irresistible inference that the applicant possessed the “ice” for the purpose of trafficking in it.

27.  In support of the first ground of appeal, counsel for the applicant argued that the fact the applicant pleaded guilty to the second charge so that she was a drug addict and the judge should have taken this fact into account when considering whether an inference of trafficking could be drawn.  It was also argued that the quantity of “ice” in the possession of the applicant did not of itself provide a clear indication of a trafficking purpose.  It was submitted on her behalf that it is common for drug addicts to purchase a large quantity of drugs at one time thereby decreasing the risk of them being arrested or detected when they are buying drugs from traffickers.  Furthermore the applicant’s income from her employment was sufficient for her to be able to afford to purchase this quantity of “ice”.

28.  Finally it was said that the possession of the twelve empty plastic bags was not a very strong piece of evidence given that no traces of drugs were found in those bags nor was the applicant in possession of any apparatus for dividing the “ice”.  Nor was any weighing scale or packing paraphernalia found in the applicant’s residence. 

29.  It was said that all these matters, either singly or cumulatively, were not sufficient to enable an irresistible inference to be drawn that the applicant was trafficking in the “ice”. 

30.  The second ground of appeal complains that the judge erred in rejecting the defence case that the applicant possessed the “ice” for her own consumption.

31.  In respect of the second ground of appeal it is submitted that the applicant gave a consistent account from the moment of her arrest until the moment she gave evidence in court for the reason of her possession of the “ice”, namely for her own consumption of it.  This consistency of account, it is submitted, was something to which the judge should have had regard in considering whether her testimony was credible.  It is said that the judge failed to give himself a direction on consistency.  When the consistency of her account is taken together with the fact that there was no direct evidence of trafficking and that the circumstantial evidence was weak then the judge should have concluded that the applicant’s claim that the “ice” was for her own consumption may be true.    

32.  The applicant relied on the decision of the Court of Appeal in HKSAR v Huang Xiang Rong [2010] 1 HKLRD 750 where, at page 773, paragraph 61 the Court of Appeal said:

“Clearly, if in his evidence a defendant adopts the exculpatory explanation contained in his out-of-court statements, adduced into evidence by the prosecution as part of a mixed statement, there is no need or requirement for the jury to be directed to consider separately the exculpatory parts of that statement as evidence of the truth. The resolution of that issue has been overtaken by the defendant’s testimony. A direction that the accounts are consistent may be appropriate.”

33.  The third ground of appeal is simply that by reason of the above two grounds the conviction for charge 1 is unsafe and unsatisfactory.

Discussion

34.  It is convenient to deal with the second ground of appeal first.  The defence case was simply the testimony of the applicant plus the fact that she had pleaded guilty to charge 2, from which the inference that she was a ketamine user could be inferred, plus the admitted fact as to the market value of the drugs from which it was clear that the applicant was able to afford the cost of this quantity of “ice”.

35.  The judge carefully analysed the applicant’s evidence and gave cogent reasons for rejecting it.  The applicant complains that he erred in saying that he placed no weight on the admitted street value of the drugs.  The applicant says that this admitted fact was favourable to the applicant as it showed she was able to afford the “ice”.  However, I believe the applicant is misconstruing what the judge said.  This statement by the judge is in a paragraph where he is clearly saying that in respect of two matters, of which market value of the “ice” was one, he would place no weight on them for the purpose of drawing any inference adverse to the applicant.  The other matter was the fact that the “ice” was packaged in two bags.  The judge is not saying that he was ignoring these facts as evidence, merely that he would not use them for a particular purpose.

36.  The submission that he should have given himself a consistency direction is, in my view, wrong.  In the Huang Xiang Rong case the Court of Appeal was not saying that a consistency direction had to be given in every case, merely that in certain circumstances it may be appropriate.  Furthermore, the court was addressing the situation of a judge directing a jury.  What directions a professional judge sitting alone as a tribunal of fact has to give himself is quite another matter.  I am not persuaded that it is reasonably arguable that in this case the judge was required to direct himself that the assertion the applicant made in her evidence that the “ice” was for her own consumption, was an assertion she had consistently made from the time of her arrest.  That the applicant had been consistent in this claim could not have escaped the judge’s attention.  Indeed in his analysis of the applicant’s evidence the judge specifically looked for consistency and inconsistency in determining the credibility of her claims.

37.  I can detect no error in either the judge’s analysis of the applicant’s testimony or his reasoning in concluding that it was not credible.  I do not find the second ground of appeal reasonably arguable.

38.  Once the applicant’s evidence is properly rejected it is put to one side and the primary facts adduced as part of the prosecution case stand on their own, uncontradicted.  The primary facts on which the judge relied to draw the inference of trafficking have already been set out.  They amount to a person, not proven to be an “ice” abuser, being found on the street in possession of 10.08 grammes of “ice” and twelve empty resealable plastic bags suitable for the re-packaging and selling of the “ice”.

39.  I have no doubt that these primary facts do allow of an inference of trafficking.  I am not persuaded that it is reasonably arguable that no reasonable tribunal of fact could draw an inference of trafficking from these primary facts.  Nor can I detect any error by the judge in his reasoning by which he reaches the conclusion that he should draw the inferencing of trafficking.

Conclusion

40.  For these reasons I was not persuaded that any of the grounds of appeal of the applicant were reasonably arguable.  I therefore refused her leave to appeal her conviction.

41.  I informed the applicant of her right to renew her application before the Court of Appeal and I also informed her of the existence of the power contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  I explained the nature of this power to her and of the possibility that should she renew her application before the Court of Appeal that court may exercise this power against her.