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 499 OF 2014)

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J U D G M E N T

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Introduction

1.  The applicant was tried in the District Court before Judge Dufton (“the judge”) on a charge sheet containing two charges.  The 1^st charge was “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  This charge alleged that on 29 March 2014 at the staircase, second floor, No. 429 Shanghai Street, Mongkok, Kowloon, the applicant unlawfully trafficked in 37.27 grammes of a powder containing 27.35 grammes of ketamine.  The 2^nd charge was “Possession of a Part 1 poison”, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  This charge alleged that on the same date and at the same location as the 1^st charge the applicant had in his possession 41 tablets containing a compound containing the chemical structure dihydro-1, 4‑benzodiazepine. 

2.  On 1 September 2014 the defendant was convicted after trial of both offences and on the same day sentenced on the 1^st charge to 4 years and 9 months’ imprisonment and on the 2^nd charge to 2 months’ imprisonment which the judge ordered to be served concurrently with the sentence on charge 1.

3.  The applicant applies for leave to appeal against conviction and sentence. In respect of his application for leave to appeal against conviction he has been granted legal aid and is represented by Ms Sezen Chong who has filed on his behalf Perfected Grounds of Appeal.  In respect of his application for leave to appeal against sentence he has been refused legal aid and appears in person.  He has not filed any Grounds of Appeal or any submission in support of his application for leave to appeal sentence. 

The trial

4.  The allegation against the applicant is that at about 5:40 pm on 29 March 2014 he was intercepted by the police after leaving his home at Flat A, second floor, No 429 Shanghai Street.  The police found inside a red bag carried by the applicant four transparent plastic bags, three of which were later found on examination to contain ketamine.  These three resealable plastic bags contained 7.66 grammes of ketamine, 8.72 grammes of ketamine and 10.97 grammes of ketamine respectively.  Also found in the same bag were the 41 tablets that are the subject of the Part 1 poison charge.  Under caution the applicant said that he had just bought the ketamine.

5.  The applicant admitted the whole of the prosecution case at trial and in the defence case elected not to give evidence or call any witnesses.  For the purposes of placing before the court his defence he relied upon the contents of a video record of interview conducted with him by the police. 

6.  In his video record of interview the applicant, who was 56 years of age at the time of the offence, claimed to have been a drug addict for several decades and that he consumed both ketamine and heroin.  He said he had bought the drugs that morning solely for his own consumption, and then went home to sleep.  When asked where he intended to go when he was stopped he replied that he was going to eat something.  Later in the interview he was asked why he left home with the ketamine in his possession and he replied that he wanted to conceal the ketamine at a location outside of his residence to avoid being arrested should they be discovered at his home.  When asked where outside he would place the drugs he replied:

“Just find a place randomly (and) put (them) thereat.”

7.  It was an admitted fact that on 7 April 2014 the applicant 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 applicant had a history of intravenous drug usage.

8.  The only issue at trial was whether the drugs which the applicant possessed were for his own consumption or whether he was in possession of them for the purpose of trafficking. 

9.  The prosecution urged upon the judge that in view of the quantity of ketamine possessed by the applicant, the way in which the ketamine had been packaged, and that the applicant was arrested when leaving his home in possession of the drugs, the only reasonable inference to be drawn was that he intended to supply the ketamine to other users.

The Reasons for Verdict

10.  The judge accepted that the applicant was a drug addict but the question arose of whether he was addicted to both heroin and ketamine. After considering various answers made by the applicant in his video interview the judge concluded by his answers that the applicant was not saying he did not take ketamine.  Although the judge accepted that the applicant was a user of ketamine he did not resolve the issue of whether he was addicted to it or whether he was only an occasional, recreational user of it.

11.  The judge went on to discuss the admitted fact relating to the applicant’s admission to the Queen Elizabeth Hospital and said in respect of this admitted fact that he did not accept that it supported the contention that the applicant was a ketamine addict.  He said that the admitted fact referred to the doctors being of the opinion that the applicant had a history of intravenous drug use which he said was consistent with heroin addiction.  He then referred to the Court of Appeal’s decision in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 where the expert evidence received by the court was to the affect that ketamine is generally consumed by snorting or is compressed into tablets.  He then stated:

“Accepting the defendant is a drug addict I turn to consider whether the ketamine was for trafficking or was or may have been for the defendant’s own consumption.”

12.  The judge then went on to discuss the evidence from which an inference might be drawn of trafficking.  He referred to various decisions relied on by the applicant’s counsel and noted that:

“Whether the circumstantial evidence, including the quantity of drugs, is sufficient to establish an irresistible inference of trafficking depends on the facts of the case.”

13.  Because part of the evidence relied on by the prosecuting counsel to draw the inference of trafficking was the quantity of ketamine possessed by the applicant, the judge went on to consider what quantity of drug might be consumed by an addict on a daily basis.  He had no expert evidence of this matter before him.  But he took judicial notice of the average consumption of drug addicts on the basis of statements made by experts in earlier Court of Appeal decisions.  He relied upon the opinion of Professor Lee in the Hii Siew Cheng case and comments by the Court of Appeal in Secretary for Justice v Ng Wing Yi, CAAR 4/2013, unreported, 11 November 2013.  This material provided him with a range of usage. 

14.  The opinion of Professor Lee was that recreational doses ranged from 10 to 250 mg and so 27.35 grammes would provide more than 109 doses of this quantity for a consumer who was only a recreational user of the drug.  However an addict is capable of consuming 1 to 2 grammes per day and on this level of usage 27.35 grammes would provide an addict a supply of between 13 to 27 days.  On the issue of the applicant’s consumption of ketamine the judge concluded his discussion with the following comment:

“Whilst accepting the defendant is a drug addict and he told the police he had taken ketamine and heroin for over 10 years there is no other evidence before the court as to the defendant’s consumption of ketamine.”

15.  The judge then went on to address the question of why the applicant was leaving his home in possession of the ketamine when he was arrested by the police.  The judge found the explanation of the applicant that he was taking the drugs with him in order to conceal them in a place outside of his home, incredible and rejected it. 

16.  The judge then delivered his verdict.  He said he was satisfied so he is sure that the only inference to draw was that the applicant possessed the ketamine for the purpose of trafficking.  He drew this inference on the basis that:

(1) the applicant was stopped when leaving his home;

(2) the applicant was found in possession of 27.35 grammes of ketamine contained in 3 separate plastic bags; and

(3) the quantity of ketamine was equivalent to at least 109 doses for recreational use and between 13-27 days supply for an addict.

17.  He said he rejected as 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.  He went on to mention matters that had not influenced his drawing of the inference of trafficking and then said:

“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).”

18.  In the two Wong Tai Shing cases to which the judge referred in brackets, the Court of Appeal said that the trial judge in each of the cases was entitled to find that a deliberate and material lie had been told by the defendant which could be used to support the prosecution case.  But in both cases the lie related to the quantity of heroin that the defendant consumed each day and in their judgments the Court of Appeal said that the trial judge was entitled to take judicial notice of the daily consumption of heroin by addicts.  This judicial notice would have provided the necessary independent evidence to prove that what the defendant had said was a lie.

19.  Finally he said that in reaching his verdict he had carefully considered the fact that no paraphernalia suggestive of trafficking, such as empty plastic bags or weighing scales, had been found on the applicant or in his home. 

The grounds of appeal

20.  In the applicant’s Perfected Grounds of Appeal against Conviction four complaints are made.  The first is that the judge erred in drawing the inference of trafficking on the limited evidence that was available to him.  The second ground of appeal is that the judge erred in using the lie to support the prosecution case when there was no independent evidence to prove the lie.  The third ground of appeal complains that the judge erred in not finding that the applicant was a ketamine addict and that the intravenous drug usage by the applicant did not relate to ketamine addiction.  In support of this ground the applicant complains that the judge erred in relying upon the expert’s evidence provided to the Court of Appeal in the Hii Sew Cheng case.  The fourth ground of appeal complains that the judge erred in rejecting of failing to give sufficient weight to the fact that the applicant was a drug addict who had been taking ketamine for years and to his claim under caution that the ketamine was for self consumption and that it had taken the ketamine out from his home because he thought it was unsafe to leave it at his premises. 

21.  In respect of the applicant’s application for leave to appeal his sentence the applicant informed the court today that his only complaint was that as he had agreed the prosecution case and had not wasted taxpayers’ money he was entitled to a discount on his sentence.

Discussion

22.  I am satisfied that the first to third grounds of appeal are reasonably arguable and I grant leave for the applicant to appeal his conviction and argue these grounds only.  I do not find ground four to be reasonably arguable and do not grant leave to appeal in respect of this ground.

23.  The issue of whether the applicant should be given a discount for agreeing the prosecution case was raised before the judge.  He decided he should not and in reaching this decision he considered the principles set out by the Court of Appeal in HKSAR v Chan Chi Wah, CACC 250/2004, unreported, 27 October 2004 where the court said that in considering whether to grant such a discount it was proper to take into account the complexity of the case, the facts admitted and the likely amount of court time saved.  I can find no error in the judge’s exercise of his sentencing discretion and I refuse the application for leave to appeal sentence.