HKSAR v. ATA ASAF

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Press Summary (Chinese)

FACC No. 9 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2015 (CRIMINAL)

(ON APPEAL FROM CACC NO. 292 OF 2013)

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REASONS FOR JUDGMENT

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Mr Justice Fok PJ:

1. At the appellant’s trial for trafficking in a dangerous drug, inadmissible evidence infringing his right to silence was heard by the jury.  The Court of Appeal, by a majority, concluded that, though irregular, this was not material to the fairness of the trial and did not render his conviction unsafe, and therefore dismissed his appeal against conviction.

2. Leave to appeal to this Court was granted by the Appeal Committee on the basis that it was reasonably arguable that there had been substantial and grave injustice.[1] At the conclusion of the hearing of the appeal, the Court allowed the appeal and made the various orders set out below.  The Court indicated that it would provide its reasons for doing so in due course.  These are the reasons of the Court.

Background

3. The appellant was observed by plainclothes police officers in the early hours of the morning on 17 March 2012 approaching an apparently drunken man sitting asleep on the pavement in Jordan Road, Kowloon.  The appellant was seen to take a paper bag from the man and was arrested by the police.  The bag was found to contain a brand new Apple iPad and case worth HK$6,830.  On being searched, a bag suspected to contain dangerous drugs was found in his front trouser pocket.  He was arrested and cautioned for the offence of possession of a dangerous drug[2] but declined to say anything.  When interviewed at the police station, he again declined to say anything.

4. The appellant was charged with one count of theft, in relation to the contents of the paper bag (Count 1).  The bag of suspected drugs was found to contain 13.64 grammes of a crystalline solid containing 12.07 grammes of methamphetamine hydrochloride, or “Ice”, with a street value of HK$10,748.  He was charged with trafficking in a dangerous drug (Count 2).[3]

5. At his trial, the appellant pleaded guilty to the charge of theft.  In relation to Count 2, he pleaded not guilty to trafficking but guilty to the lesser charge of possession.  The prosecution did not accept this plea and the trial proceeded.[4] On 24 June 2013, after a short trial, the appellant was convicted of the offence of trafficking.  The judge imposed a total sentence of 7 years’ imprisonment in respect of the two offences.

6. On appeal,[5] the ground of appeal advanced by the appellant on conviction was that the inference of trafficking was not the only inference which could be drawn from his admitted possession of the drugs and that, on the evidence, the judge should have withdrawn the case of trafficking from the jury.  This ground of appeal was unanimously rejected by the Court of Appeal.  However, in the course of argument, the Court of Appeal drew counsel’s attention to a passage in the cross-examination of the appellant at trial (see below) and raised the issue of whether the exchange was an error of law or irregularity in the trial and, if so, whether it was material.

7. For reasons that will be examined below, Macrae JA (with whom Lunn VP agreed) concluded that the exchange was an irregularity but not material whilst McWalters JA concluded that the admission of the evidence in question was a material irregularity and an error of law.  Accordingly, on this ground of appeal, the Court of Appeal dismissed the appeal by a majority.  On the appeal against sentence, the Court of Appeal unanimously allowed the appeal to the extent of reducing the overall sentence to one of 6 years and 9 months’ imprisonment.

The irregularity in the trial

8. During the course of the appellant’s cross-examination by prosecuting counsel, the following exchange took place:

“Q. And the police, the lady officer who gave evidence, said that they didn’t find anything of significance.

A. Yes.

Q. So the police missed, they didn’t find the bottle and the pipes that you used to consume ‘Ice’.

COURT: That’s outside the window, outside the premises.

Q. Yes, outside, under the shade outside your window.

COURT: Under the air-conditioner, in the air-conditioner?

MR. WHITEHOUSE: Yes, yes.

A. Yes. No.

Q. And you didn’t think of telling them that ‘This is where I consume my ‘Ice’ and this is the equipment I use to consume it’?

A. No.

Q. And why not?

A. Because they did not ask me.

Q. I suggest to you that this is completely untrue, that there’s no equipment in your home at all.

A. It’s true and equipment was there.

Q. I suggest you’re not an honest person.

A. What do you mean?

Q. You’ve got many convictions for dishonesty.

A. I did make thefts and I …

COURT: ‘I did make’ what?

A. I did make thefts and I did make possession and I have served sentences for those. And I did make – I did plead guilty for those offences what I had done.

Q. In fact, what I was suggesting to you, I suggest your record shows that you’re a dishonest person and you are not telling the truth today in court.

A. I am under oath and I am telling truth.”

(Emphasis added)

9. The context of the exchange was that the prosecution was seeking to undermine the credibility of the appellant’s evidence in chief that the drugs found in his possession were for his own use and that he habitually consumed “Ice” in his bedroom at his parents’ flat where he lived.  This is demonstrated by the following part of the prosecution’s subsequent closing speech to the jury:

“And another question you may ask when considering the – whether or not you can accept this defendant’s evidence, why, when the police went to his flat, his home, where his mother and father live, the following day, why did the police not find any of the – any evidence of equipment to – for smoking, inhaling ‘Ice’ in his – in his room? I’ve talked about luck or bad – his bad luck. Was it just his good luck that the police wasn’t – weren’t able to find it or was it another part of his story that is not true?

My submission to you, members of the jury, that the whole defendant’s account for the possession of this ‘Ice’ is inherently unbelievable.”

The right to silence

10. There are two respects in which a person’s right to silence may be infringed.  The first is where his silence is used to infer guilt of the particular offence of which he is suspected or charged.  This may occur, for example, where a suspect is caught red-handed and, when questioned as to what he is doing, declines to answer.  His silence in these circumstances may be said to give rise to an inference of guilt.

11. The second way that a person’s right to silence may be infringed is where it is suggested that a line of defence or evidence which is helpful to the suspect or accused is a late invention because it was not mentioned earlier. This suggestion of recent invention may be said to undermine the credibility of the line of defence or evidence tendered.

12. It is common ground on this appeal, as it was in the Court of Appeal, that the italicised passage in the cross-examination constituted inadmissible evidence.  It did so because it clearly infringed the appellant’s right to silence in the second way referred to above.  That right, being an aspect of the right against self-incrimination,[6] is a fundamental right of a person suspected of or charged with a criminal offence as recognised in this Court’s decision in Lee Fuk Hing v HKSAR.[7]

13. In Lee Fuk Hing, this Court materially held that the use of a person’s exercise of the right of silence in either way described above was impermissible. The Court agreed with the reasoning of the majority of the High Court of Australia in Petty & Another v R[8] refusing to follow English authority[9] which had drawn a distinction between the exercise of an accused of his right of silence leading to an inference of guilt and the failure of an accused to advance an explanation later relied upon at trial as relevant to his credibility.  Hence, at [55], the Court held:

“In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”

(Emphasisadded)

14. The Court explained the rationale for this principle in these terms at [56]:

“A person’s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment. It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial. There are comments in some of the authorities to which we have referred which suggest that in some circumstances a trial judge may fairly inform the jury that an explanation has been made for the first time at trial provided that the judge also makes it clear that an accused has the right to remain silent and make no explanation in answer to police questions. With respect such a direction is also objectionable. It gives rise to an adverse inference against the accused.”

15. It is to be noted that the position in England in respect of a person’s failure to mention something on which he later relies in court has been clarified by s.34 of the Criminal Justice and Public Order Act 1994. This permits the court or jury, in certain circumstances, to rely on an accused’s failure to mention to the police a fact which he could reasonably have been expected to mention in order to draw such inferences as appear proper.  This is reflected in the caution given by a police officer to a suspect in the United Kingdom.[10] There is no counterpart to s.34 of the 1994 Act in Hong Kong.[11]  By contrast, the caution administered to suspects in Hong Kong is in unqualified terms, as the Court recognised in Lee Fuk Hing.[12]

The issue on appeal and the parties’ respective contentions

16. It is common ground on this appeal, as it was in the Court of Appeal, that the italicised passage in the cross-examination constituted inadmissible evidence.  Whereas the issue in the Court of Appeal was whether this was an error of law or material irregularity rendering the conviction unsafe and unsatisfactory, in this Court the issue is whether there has been substantial and grave injustice by reason of a departure from an accepted norm to the appellant’s disadvantage.[13]

17. Mr Gerard McCoy SC, leading counsel for the appellant,[14] relied squarely on the dissenting judgment of McWalters JA holding that the admission of the inadmissible evidence was an error of law and a material irregularity in the trial which was not cured by the judge’s standard direction on the right to silence in her summing-up to the jury (discussed further below).  Therefore, the conviction of the appellant for the offence of trafficking in breach of his right to silence amounted, in all the circumstances, to substantial and grave injustice.

18. For the prosecution, Mr William Tam SC[15] submitted that the majority judgment of Macrae JA holding that the admission of the evidence was not a material irregularity rendering the conviction unsafe and unsatisfactory was correct and, hence, that there was no question of substantial and grave injustice having been done to the appellant.

The importance of the issue of credibility in this case

19. The question of whether the right to silence has been materially infringed being fact and context sensitive, it is necessary to identify the issue to which the inadmissible evidence related and its importance in the context of the case as a whole. 

20. The prosecution case, as summarised by Macrae JA in his judgment,[16] relied on the following factors: (1) the discovery of the appellant in the early hours of the morning in possession of a not insubstantial quantity of “Ice” in a public place and not his home where he said he consumed drugs; (2) the absence of the discovery of drug taking paraphernalia at his home when it was searched; (3) the fact the appellant, whose monthly income was around HK$8,400, paid just over HK$7,000 for the drugs worth over HK$10,000; (4) the fact the theft of the iPad could not have been with a view to paying for the drugs in question; and (5) the fact the quantity of “Ice” found on the appellant would have been sufficient for as much as 30 to 40 days’ personal consumption but could have supported multiple users.

21. It is quite clear that the case of trafficking was one which was properly left to the jury to determine but it was by no means a compelling one.  The appellant’s defence was that he was an habitual drug abuser and that the “Ice” found on him was for his own personal consumption.  No paraphernalia for drug trafficking was found either on his person or at his home and, at the conclusion of his cross-examination (although not, apparently, before that), prosecuting counsel accepted that he was a user of “Ice”.  In support of the appellant’s case that he was a drug user, defence counsel at trial introduced the appellant’s criminal record which included a number of previous convictions for possession of dangerous drugs but none for trafficking.  It also included previous convictions for theft, which the appellant explained related to his stealing razor blades from a shop which he then sold for money to buy drugs.  As McWalters JA rightly pointed out,[17] this was a bold tactic but was designed to bolster the credibility of his evidence that the “Ice” found in his possession was for his own consumption.

22. It was common ground at trial, and on appeal, that the sole issue in the trial was the credibility of the appellant.  His credibility was relevant in two respects: first, specifically, as to his claim that he was a drug abuser and that he was therefore in possession of the “Ice” for his own consumption and not for trafficking; and secondly, more generally, as to his evidence as a whole.  This is an important context in which to judge the materiality of the inadmissible evidence and also the effectiveness of any remedial steps taken to cure any prejudicial effect.  This context was all the more important because of the way the defence was run by reference to the introduction of the appellant’s criminal record, which would expose the appellant to the risk of being subject to unfair prejudice in his cross-examination.

The introduction of the inadmissible evidence was clearly a material irregularity

23. With respect to Macrae JA’s judgment to the contrary, and notwithstanding Mr Tam’s able submissions in support of that judgment, the introduction of the inadmissible evidence was clearly a material irregularity in the context of the appellant’s trial.

24. As noted above, the sole and critical issue for the jury was whether the appellant’s claim that the drugs were for his own consumption rather than for trafficking was true.  His counsel had adopted the understandably bold tactic of introducing his past criminal record to support this.  That criminal record included offences of dishonesty so the credibility of his oral testimony before the jury was particularly important.  Towards the end of his evidence in chief, the appellant gave evidence that he kept the equipment he used to consume “Ice” at home in the space outside his bedroom window below the air-conditioner. This was shortly before the conclusion of his evidence in chief which ended with his absolute disavowal of any intention to deliver or sell the “Ice”.

25. At the outset of the prosecution’s cross-examination of the appellant, counsel tackled the appellant’s claim to have bought the drugs for his own consumption.  He put to the appellant that it was just bad luck that, on the night he was arrested, he happened to have used up his supply of drugs and had just purchased a whole month’s supply but had not had time to take this home. He then proceeded immediately to ask the appellant about the search of his home and the exchange set out in paragraph 8 above, which included the inadmissible evidence, took place.  As will be apparent, the purpose of this cross-examination was in order to suggest that what the appellant had said was “completely untrue” and that he was “not an honest person” but was “a dishonest person”.

26. Counsel for the prosecution then proceeded to cross-examine the appellant on his previous convictions, emphasising that he had been disbelieved in his testimony when he had pleaded not guilty to being knowingly in possession of three forged credit cards and had been convicted of offences of theft.  This culminated in the following exchange:

“Q. All right. Well, I put it to you, you are a thoroughly dishonest man. What do you say to that?

A.   I can’t say anything. Sometime I am honest and sometime I am dishonest.”

27. In his closing speech to the jury, consistent with his identification of the sole issue being the truth of the appellant’s claim that the drugs were for his own use, counsel for the prosecution attacked the appellant’s credibility root and branch.  The following extracts serve to illustrate this:

“Now, bearing in mind what the prosecution say is his unlikely explanation, bearing in mind his very bad criminal record, particularly for dishonest – dishonesty, you may find it very, very difficult to believe almost anything that he told you yesterday. Certainly, in my submission, he was not telling the truth when he said that this ‘Ice’ was for his own use, for his own consumption.

Now, why do I put it that way, members of the jury? Firstly, he’s been shown to be an utterly dishonest person; dishonest in the past. …

Now, of course, that record doesn’t meant to say he is – it necessarily follows that he is a drug trafficker, but, to make my point, members of the jury, the prosecution’s submission is that you might find it very difficult to accept or to be impressed in any way with his evidence when he says that the ‘Ice’ was for his own use.”

28. Although he had eventually accepted that the appellant was a drug user, counsel for the prosecution addressed the question of the equipment for taking drugs in his closing speech in the manner set out in paragraph 9 above.  Crucially, however, shortly before that remark in his speech, counsel made this comment about the appellant’s evidence that he had gone out on the day before his arrest with money to buy drugs:

“Now, to deal with the – his defence in a little bit more detail. In evidence yesterday – for the first time, I might say, members of the jury – he claims that he went out that morning with something more than $7,000 in his possession. That was that morning; he went to work that morning. That would be the previous day, he being arrested in the early hours of the following day, of course.

He went out that morning to work, with 7,000-plus dollars in his possession and you may wonder where he got – he got that money from, if it was true – and the prosecution is in doubt, so you can’t accept what he is saying. …”

(Emphasis added)

29. The italicised portion in the preceding paragraph is a further instance of inadmissible material being put before the jury.  It was improper for prosecuting counsel to have sought to cast doubt on the veracity of the appellant’s evidence by reference to the fact that it was only during his evidence that he first testified that he went out with sufficient money to buy the drugs found in his possession.  By reason of his invocation of his right to silence, he had not made this claim previously and it was wrong for prosecuting counsel to use his exercise of that right to suggest his evidence was not to be believed.  Yet, this passage in counsel’s closing speech was delivered only shortly before his rhetorical question (albeit contradicting somewhat his eventual acceptance that the appellant was a drug user) asking why the police did not find drug-taking equipment at the appellant’s home.  That reference, the jury will have no doubt recalled, occurred in the cross-examination in which, similarly, prosecuting counsel had sought to cast doubt on the appellant’s evidence that the equipment was outside his window because he had not previously told anyone this.

30. The references above demonstrate that it was a consistent theme of the prosecution that the appellant was not to be believed and this was at least in part because he made things up as he went along.  The latter premise was based on inadmissible evidence and material used in breach of the appellant’s right to silence.

31. For these reasons, and with respect, we disagree with the statement in Macrae JA’s judgment that:

“… at no stage during prosecuting counsel’s speech to the jury was anything made of the fact that the applicant did not tell the police where his drug-taking equipment was kept.”[18]

As a matter of context, there is good reason to think that the jury may very well have connected the criticism of the appellant for his failure previously to mention going out with HK$7,000 and the earlier criticism in cross-examination of his not thinking to tell the police where his drug-taking equipment was kept.

32. As a further matter of context, in this regard, it is material that the trial was a short trial lasting only 5 days.  Cross-examination of the appellant took place on Day 3 of the trial (Thursday 20 June 2013) and both counsel’s closing speeches were made on Day 4 (Friday 21 June 2013), followed on the next working day (Monday 24 June 2013) by the judge’s summing-up to the jury in the morning of the last day of the trial.  The jury returned their verdict in the afternoon of that day.  It is reasonable to conclude that the prejudicial effect of any inadmissible evidence would therefore still have been fresh in the minds of the jury.

Prejudicial effect clearly not remedied by judge’s standard direction

33. As the Court noted in Lee Fuk Hing, when an error of this sort occurs, the judge has to decide whether he can correct the error in such a way that the trial can proceed fairly.[19] There are no doubt instances when a judge may properly decide that, notwithstanding an error resulting in inadmissible material being received by the jury, “the less said the better”.  Whether the error requires to be rectified and, if so, how, will depend on the facts of the individual case.

34. In her summing-up to the jury, the judge gave the standard direction to the jury on the accused’s right to silence in these terms:

“The prosecution has produced, without objection from the defence, evidence that the accused said, when questioned by the police, that he had nothing to say. In other words, he exercised his right to silence, as he was entitled to do. His having done so does not advance the prosecution’s case. It is not to be held against the accused in any way whatsoever. The exercise of the right to silence does not amount to an admission of any kind, nor can it be taken to reflect a guilty conscience.”

35. Later in her summing-up, the judge did specifically focus on the evidence concerning the search of the appellant’s home and said:

“The cross-examination directed to his not having told the police where he kept his drug-taking equipment does not help the prosecution since the prosecution does not dispute that the accused did consume drugs.”

This statement was in the context of a summing-up that was, in general, extremely favourable to the defence case and implied that the jury ought to accept the truth of his claim that he was only in possession of the drugs for his own use and not for the purposes of trafficking.[20]

36. In his judgment, Macrae JA contrasted the standard direction given by the judge in this case with the absence of that direction in Lee Fuk Hing and noted that the judge’s statement about the inadmissible evidence was to the unqualified effect that it did not help the prosecution.  For these reasons, he concluded that, viewing the summing-up as a whole, the irregularity in question was not material.[21]

37. With respect, we are unable to agree with Macrae JA’s conclusion in this regard and prefer that of McWalters JA to the contrary.

38. Whilst it is true that the judge gave the standard direction and that this was absent in Lee Fuk Hing, the standard direction referred to the appellant’s exercise of the right to silence “when questioned by the police” but did not expressly extend to the search of his home or to an occasion when he might have volunteered some relevant information, viz. that his drug-taking equipment was in fact outside the window.  The cross-examination of the appellant in this regard did not identify an occasion when he was asked any question by the police.  On the contrary, his asserted reason for not mentioning the drug-taking equipment to the police (and which Macrae JA considered was “quite a good answer”[22]), was that he was not asked about this, so the jury may have (wrongly) reasoned that there was no occasion to claim a right to silence.

39. More importantly, there are certain difficulties with the judge’s statement in respect of the inadmissible evidence concerning the drug-taking equipment.  The whole of the passage in question is as follows:

“I have to tell you, in all fairness to the accused, that his account of being only a drug user and not a drug trafficker is an account which was unshaken in cross-examination. As for the cross-examination questioning whether he was born in Hong Kong, the accused’s birth certificate showing that he was born in Hong Kong has been produced subsequently. You are also to wholly ignore the cross-examination suggesting, by reference to his previous convictions, that the accused was dishonest. He has previous convictions, but they do not help the prosecution prove trafficking against him. The cross-examination directed to his not having told the police where he kept his drug-taking equipment does not help the prosecution since the prosecution does not dispute that the accused did consume drugs.”

40. It will be immediately apparent that the comment about the drug-taking equipment is to be contrasted with the express direction that the jury are “to wholly ignore” the cross-examination suggesting dishonesty by reference to his previous convictions.[23] The jury may well have reasoned that there was a real distinction between the treatment of the different evidence: that they were wholly to ignore the evidence based on previous convictions as regards dishonesty but that, in respect of the evidence of the drug-taking equipment, the evidence, though properly to be taken into account, did not help the prosecution.  Moreover, the jury may have thought that the judge’s comment on the evidence concerning the drug-taking equipment was merely her own view of that evidence, in which case they may have approached it on the basis of her direction that they were not obliged to accept that view.  This is because she had earlier directed them in standard terms that:

“… if in the course of my review of the evidence I appear to express my views concerning the facts or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them; and if I do not mention something which you think is important, you should have regard to it in any event and give it such weight as you think fit. When it comes to the facts of this case, it is your judgment alone that counts – remember that.”

Although there is an assumption that the jury will follow the instructions which they receive from the trial judge,[24] there is a real risk here that the jury may have embarked on an impermissible line of reasoning, viz.: because the appellant did not mention something helpful to his defence at the earliest opportunity, that defence was not to be believed.  That this may have happened is underscored by the fact that, notwithstanding a summing-up that “positively encouraged”[25] the jury to conclude that the drugs were for the appellant’s own consumption rather than trafficking, the jury convicted him of the latter offence.

41. A further reason the judge’s standard direction on the right to silence did not remedy the error constituted by the admission of the evidence concerning the drug-taking equipment is that, although she addressed that specific evidence in her summing-up, she made no mention at all of the inadmissible evidence introduced in prosecuting counsel’s speech that it was only during his testimony the day before that the appellant had claimed he went out that day with HK$7,000.  By not referring to and directing the jury to ignore the comment that the appellant had not previously mentioned going out with the money, the jury might well have reasoned that counsel’s remark was a proper one for them to take into account.  If it was proper to take that remark into account, then the same comment could, they might have reasoned, also apply to the failure previously to mention the drug-taking equipment.

42. For these reasons, I would respectfully agree with the view expressed by McWalters JA that:

“What was required from the judge in respect of it was not a statement as to its probative value to the prosecution but rather a clear, unequivocal legal direction that the jury must ignore it, were not permitted to rely on it and an explanation for why this legal direction was being given. The comment of the judge left the inadmissible evidence before the jury to make of it what they would. There was no prohibition by the judge preventing them from relying on it as evidence and this meant there was no prohibition on them using it for the purpose of inferring guilt or of assessing the truthfulness of the applicant and the credibility of his testimony.”[26]

43. In his judgment, one of the factors Macrae JA referred to in reaching his conclusion that the standard direction was sufficient was that defence counsel did not raise the matter with the judge during the appellant’s evidence, or after cross-examination or before the summing-up.[27] Mr Tam also relied on this factor in his submissions in this Court.  However, whilst it is true that trial counsel for the appellant did not raise with the judge any concern about the inadmissible cross-examination in question, this is not a factor of significant weight in the present case.  It is by no means clear that counsel appreciated the prejudicial effect of the evidence and it was not a point that occurred to different counsel appearing for the appellant in the Court of Appeal, since it was that court which drew counsel’s attention to the point eventually taken.  In any event, regardless of what counsel may have thought of it, we are of the view, for the reasons stated above, that this evidence was seriously prejudicial.

Conclusion and disposition

44. By reason of his conviction in these circumstances, substantial and grave injustice was, for the reasons set out above, done to the appellant.  At the conclusion of the hearing, without calling on Mr McCoy in reply, the Court indicated it would allow the appellant’s appeal.  Although the respondent’s printed case sought an order for re-trial on the charge of trafficking if the appeal were allowed, Mr Tam sensibly indicated that, in light of the evidence and the lapse of time since the offence and the appellant’s detention in custody, he would not press for an order for a re-trial.  As to the appropriate sentence for the lesser offence of possession, it was common ground that the sentence of imprisonment already served by the appellant was longer than any sentence that would have been imposed on him for that lesser offence, even allowing for any additional sentence for the appellant’s theft conviction.  Accordingly, at both counsel’s invitation, the Court substituted a sentence which would allow for the appellant’s immediate release.

45. In the circumstances, the Court made the following orders by way of disposition of the appeal:

(1) Appeal allowed;

(2) The appellant’s conviction for trafficking in a dangerous drug be quashed and substituted by a conviction for possession of a dangerous drug;

(3) The sentence imposed by the judge for the offence of trafficking be quashed and substituted by a sentence for possession that would allow for the appellant’s immediate release;

(4) The sentence for the appellant’s conviction for theft be served concurrently with the substituted sentence for possession.