HKSAR v. WONG HON YUEN

CACC 455/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 455 OF 2003

(ON APPEAL FROM DCCC NO. 580 OF 2003)

----------------------

______________

---------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. The applicant was convicted on 29 September 2003 by HH Judge Wesley Wong in the District Court of one charge of trafficking in dangerous drugs, and he was sentenced to a term of five and a half years' imprisonment.

2. The facts against the applicant were formally admitted and were as follows.

"(1) At about 2100 hours on 4 April 2003, a team of police officers laid ambush outside, Flat D, 7/F, East South Building, Nos. 475-481, Hennessy Road, Wanchai ("the Premises"). At about 2215 hours on the same day, D was seen to have come out of the Premises. Upon seeing the police officers, D immediately turned around and attempted to get back into the Premises. The team of police officers immediately went up and intercepted D outside the Premises. A search was conducted on D and a bunch of keys were found in his possession. D agreed to lead the police officers into Room 2 inside the Premises. D used the bunch of keys found in his possession to open the doors of the Premises and Room 2 of the premises.

(2) Upon entry, D pointed at two plastic boxes placed on top of a cabinet and said "the things were inside those two boxes". Upon checking, there were 90 plastic straw packets containing suspected dangerous drugs inside one of the said boxes. Further, a transparent resealable plastic bag and a plastic card containing traces of suspected dangerous drugs were found inside the other box. Also, a plastic bag containing 18 plastic straws, a pair of scissors and a lighter were found on top of the cabinet and a table respectively.

(3) PC 53156 declared arrest of D for the offence of 'Trafficking in a dangerous drug' and administered a verbal caution to him. D under caution voluntarily admitted inter alia that the suspected dangerous drugs found inside the Premises belonged to him and for his own consumption. The conversation was post recorded in an interview at 2331 hours on 4th April, 2003 (Annex 1 with certified translation). Later, D gave two further statements voluntarily under caution in interviews held at 0030 hours on 5th April, 2003 and 2244 hours on 12th May, 2003 respectively. (Annex 2 with certified translation and Annex 3 with certified translation).

(4) The contents of the two plastic boxes (as particularized in paragraph 2 heroin) seized inside the Premises were sent to the Government Laboratory for examination and were confirmed to contain the following:

(a) 90 plastic straw packets containing a total of 23.36 grammes of a mixture containing 17.79 grammes of heroin hydrochloride;

(b) one plastic bag containing traces of heroin hydrochloride; and

(c) one plastic card containing traces of heroin."

3. In these circumstances the applicant was charged with trafficking in 17.79 grammes of heroin. When he was arrested he said that because he thought it was risky to buy drugs each time he wanted them for consumption, he purchased them in bulk quantity. He was interviewed the following morning and he said that his habit was to take three pellets of drugs per day; and that he had purchased the drugs found at his premises from a person at the wholesale market in batches costing $4,000 each time, a quantity that would last him a month and further that he consumed the drugs by injection.

4. The applicant gave evidence at trial and he maintained his story that the drugs were for his own consumption. He had purchased them, he said, that morning and left them in his flat and that he returned from work at 7 pm and packed the drugs into straw packets. He made ninety straws because, he said it was convenient to know each time what was the amount that he was taking; and that he bought the drugs in bulk because it was cheaper that way and also minimized the risk of arrest. He had been a drug addict as evidenced by previous convictions for possession of dangerous drugs for over ten years. There were no convictions for trafficking.

5. In his Reasons for Verdict the trial judge said this:

"I do not consider his previous convictions on drugs have any bearing in this case. However, I do not find the defendant a reliable witness. He said it needs over a minute to make one straw of dangerous drugs and that he had an injection after work.

9. Although he said that he had taken one injection and that the method of consuming the heroin is by injection, no syringe was found in his premises, either used or unused, so I do not accept his evidence.

10. I find that he had those 90 straws for the purpose of trafficking, because if he really were to consume those dangerous drugs, all he needed was to use one sample empty straw to measure the quantity that he needed to take each time. So there was no necessity for him to take the trouble of sealing the straw, putting the drugs into the straw and then seal the top. I find that as a fact that he had all those 90 pellets of drugs for trafficking and I find the defendant convicted as charged." (tr p11H-R).

6. The applicant is unrepresented before us but he prays in aid grounds referred to as preliminary grounds by counsel in advice given to the legal aid authorities. The first two relate to the fact that between returning home and his arrest at 10:15 pm the applicant managed to pack 90 packets according to his account, and the judge seems to have found this unlikely, and it is said that the evidence emerged from a question which the judge ought not to have put and, further, that the judge made an error as to the time of the applicant's arrest. It is said that the judge erred in placing weight on the absence of a syringe, and the judge wrongly failed to place weight on the absence of previous convictions for trafficking. The applicant has addressed us orally today about the suggested error by the judge as to the time of arrest, and in relation to one or two other matters.

7. In the event we are satisfied that the no material error is shown. Whatever was the position about the time of arrest there is a central feature of the case which clinched the matter against the applicant. A glance at the photographs in this case is revealing for it shows these ninety packets, each neatly packed and sealed at both ends, and the judge's emphasis on this fact as a signal pointer to trafficking and as going against the applicant's stated reasons for packing them at all seems to us to have made sense.

8. Accordingly, the application for leave to appeal against conviction is dismissed.