HKSAR v. BADJIE ESSA

HCMA 486/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 486 OF 2015

(ON APPEAL FROM ESCC 1306 OF 2015)

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J U D G M E N T

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1.  The Appellant was convicted of one count of trafficking in dangerous drugs after trial before Magistrate Mr Lee Siu-ho, and was sentenced to 24 months. The Appellant now appealed against his conviction and sentence.

THE PROSECUTION CASE

2.  PW1, a police officer, was on duty in plainclothes.  On 23 April 2015, PW1 approached the Appellant who kept on looking around with his right hand inserted into his trousers pocket.  PW1 saw the Appellant dropping something onto the ground.  PW1 picked up the transparent bag that was dropped. PW1 and his colleague PW2 then intercepted the Appellant.  Two more plastic bags were found on the Appellant.  PW1 arrested the Appellant who became emotional, and also put up a slight struggle.  PW1 handcuffed the Appellant.  The content of these plastic bags [exhibits P4 to P6] was sent to Chemist for analysis.  It was confirmed that P4 contained 4.71 grammes of herbal cannabis; P5 contained 5 plastic bags and some tablets containing ecstasy totalled 0.64 gramme. Their colours are yellow, pink and blue.  P6 contained 0.84 gramme of herbal cannabis; 3.99 grammes of cannabis resin, and one plastic bag of 0.24 gramme of Ice.

THE DEFENCE CASE

3.  The Appellant elected to give evidence.  He is aged 30 and was born in Gambia in West Africa.  He came to Hong Kong in July 2014, and has applied to the Immigration Department as a torture claimant.  The Appellant was financially supported by International Social Services (ISS).  The Appellant claimed that at the material time, he was on the way to a park to smoke marijuana.  The police found exhibit P4 from the Appellant’s trousers pocket.  The Appellant claimed that he bought P4 for his own use.  The Appellant had no idea about the other dangerous drugs, that is, P5 and P6.  Under caution, the Appellant admitted that he bought the cannabis from a Pakistani for $100.  He did not know anything about the other 2 bags.  The Appellant also said he received $200 cash and food allowance from ISS.  He went to Wanchai for drinking and dancing on the day of his arrest the Appellant had $300HKD and $5 RMB with him.

Grounds of Appeal against conviction and sentence

4.  The Appellant submitted the written submissions in his own handwriting. He pleaded guilty to the possession of cannabis but not the other drugs.  He claimed that there was no evidence to prove that the Appellant “offered the drugs for selling or shared with somebody else.” [1] The Appellant also complained that the police did not carry out any fingerprint comparison relating to the bags containing P5 and P6.  The Appellant also complained that the police failed to prove those drugs that they found in his left trousers pocket were his.

5.  In Form 102, the Appellant complained that the sentence was too severe.

DISCUSSION ON GROUNDS AGAINST CONVICTION

6.  The principles relating to a magistracy appeal are well settled.  A magistracy appeal is a rehearing on the papers.  The ultimate duty of the appellate court is to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. 

7.  Although there was no direct evidence to prove that the Appellant was trafficking in the dangerous drugs so seized, the Magistrate was entitled to consider the totality of the evidence, and to draw the necessary inferences based on the proven primary facts.

8.  After hearing the evidence of the Appellant, and despite the Appellant’s then clear record in Hong Kong, the Magistrate did not find the Appellant a honest and reliable witness.  He rejected the Appellant’s various denials and explanations, both in the witness box and as stated in the records of interview. The Magistrate also found it “inconceivable or incredible that, given the Appellant’s tight financial conditions in Hong Kong, he could have financially sustained his alleged habit of smoking marijuana …” [2]

9.  Although the Magistrate did not find the Appellant a credible witness, he has to consider the Prosecution case independently to see if the case against the Appellant can be proved to the requisite criminal standard.

10.  A total of 4 different kinds of dangerous drugs (namely, ice, ecstasy, cannabis resin and herbal cannabis) were found.  The Appellant was intercepted in Wanchai area in the early hours of the day while he was residing on Kowloon side.  The Magistrate accepted the evidence of the Prosecution witnesses, and found it as a fact that the dangerous drugs were found on the Appellant.  The herbal cannabis was contained in a total of 6 plastic bags [5 bags in exhibit P-4 and one in P-6], the ecstasy [P-5] was contained in 5 plastic bags and some are in tablets form [a total of 5 tablets].  There was also one packet containing cannabis resin and one plastic bag containing ice.  The Appellant denied that exhibits P-5 and P-6 were found on him.

11.  Given the circumstances under which the Appellant was intercepted, the types and packaging of the dangerous drugs and the total denial of the finding of P-5 and P-6, I am of the view that once the Magistrate accepted the evidence of the police officers, the Magistrate was totally entitled to reach his findings in that the dangerous drugs were found on the Appellant who possessed the same for the purpose of trafficking.  This must be the only reasonable and irresistible inference that can be drawn.

12.  As regards the absence of making fingerprint comparison, I cannot see any merit in this ground as the Magistrate accepted the evidence of the police officer who actually seized those dangerous drugs from the Appellant. 

13.  As such, the grounds of appeal against conviction have no merit whatsoever.

DISCUSSION ON GROUNDS OF APPEAL AGAINST SENTENCE

14.  The Appellant was convicted after trial, and there were 4 types of dangerous drugs. 

15.  Regarding this mixed drugs case, the Magistrate decided that “it is appropriate in all the circumstances of this case to adopt the individual approach.” [3] For the ice, the Magistrate used 18 months as the starting point; for ecstasy, 6 months; for cannabis resin, 2 months and for herbal cannabis, one month.  Eventually, the Magistrate took 24 months as the overall starting point and sentenced the Appellant to 2 years.

16.  The sentencing guidelines for dangerous drugs are well settled.  In normal circumstances, trafficking in Ice with the quantity up to 10 grammes would attract a sentence from 3 to 7 years.  Hence, even for a meager quantity of Ice, say 0.24g of Ice in the present case, the Magistrate could theoretically adopt a starting point of 3 years.  In my view, it is arguable whether an individual approach should be adopted in the present case.  On the other hand, it could be a bit artificial and arbitrary to make certain conversion calculations based on the absurdity test, conversion test and ratio test as suggested by the Respondent[4]. 

17.  Taking all factors into consideration, I am of the view that although the sentence so imposed is on the high side, it is not manifestly excessive.

CONCLUSION

18.  For the foregoing reasons, the Appellant’s appeal against conviction and sentence is dismissed.