HKSAR v. CHU HOI-YAN, AMY

CACC 119/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 2014

(ON APPEAL FROM HCCC NO. 240 OF 2013)

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R E A S O N S   F O R   J U D G M E N T

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Chu Hoi-yan, Amy) appeared before Deputy Judge Tallentire (the judge) sitting with a jury on a single charge of trafficking in 28.66 grammes of a crystalline solid containing 27.92 grammes of methamphetamine hydrochloride (“ice”) and 0.47 gramme of a mixture containing 0.37 gramme of heroin hydrochloride.

2. On 1 April 2014, the applicant was unanimously convicted as charged by the jury and the judge sentenced her to 6 years and 9 months’ imprisonment.

3. Represented by Ms Monica Chow, the applicant sought leave to appeal against conviction only.  At the end of the hearing, we dismissed the application without calling upon Mr Edmond Lee SADPP for the respondent.  We indicated that we would hand down our reasons in due course and this we now do.

The facts

4. The applicant was arrested by the police on 7 February 2013 at Heung Wo Street in Tsuen Wan and she was found to be in possession of the following items on her person:

1. A brown and black bag with horizontal stripes (P11) containing a re-sealable plastic bag (P1) wrapped in a piece of tissue; and

2. Attached to P11 was a brownish white rabbit coin wallet (P9) which contained (i) a transparent re-sealable plastic bag with 2 smaller re-sealable transparent bags inside (P2) which were wrapped in tissue paper (P7); (ii) another re-sealable transparent plastic bag (P3) which was wrapped in tissue paper (P8); and (iii) a white plastic pellet-like object (P4) which was also wrapped in P8.

5. P1 found in P11 contained 27.87 grammes of a crystalline solid containing 27.15 grammes of “ice”.  P2 contained 0.59 gramme of a crystalline solid containing 0.58 gramme of “ice”.  P3 contained 0.20 gramme of a crystalline solid containing 0.19 gramme of “ice”.  P4 contained 0.47 gramme of a mixture containing 0.37 gramme of heroin hydrochloride.

6. The applicant was then cautioned, and in reply, she said “Sir, you are kidding.  You just caught me.  Those are ‘ice’, dangerous drugs.”  The police further asked the applicant how she got the drugs and she replied that she had come to know a friend, Fat Chai who had drugs for sale and she telephoned him to ask him to sell her “ice”.  They then arranged to meet outside Ho Choi Restaurant where he sold her a packet of “ice” for $7,800.

7. The applicant said she only knew the telephone number of Fat Chai which was recorded in her phone book and she briefly described Fat Chai’s appearance to the police.

8. The applicant was questioned about P2, P3 and P4 and she said they were “ice” and “sei chai” given to her by Fat Chai for free as she had brought a large quantity of “ice” from him.  The applicant said she thought she had purchased 1 ounce of “ice” from Fat Chai, but did not know how much she was given for free.  The applicant claimed that she brought the “ice” from Fat Chai for self-consumption only and she asked for a chance.

9. The police subsequently made a record of the arrest and the caution on his notebook, and the applicant signed on it to acknowledge its contents.

10. An expert (Senior Inspector Ng) gave evidence to the effect that the total retail value of the “ice” and the heroin in question were respectively $21,036 and $403.

11. A senior social security assistant from the Social Welfare Department said that the applicant was in receipt of comprehensive welfare payments of $1,830 a month since October 2012 and of $2,700 since 1 February 2013.  The applicant had not reported any other income during those periods.

12. According to an expert on “ice” abuses (Professor Tang), the average daily dosage of “ice” was 0.13 gramme and the range was 0.1 gramme to 2 grammes per day.  Professor Tang accepted that a long-time addict would require more and more “ice” and that the range could be wide.

The Defence Case

13. The applicant did not dispute the prosecution evidence against her, but reiterated that the “drugs” in question were all for her consumption.  The applicant gave evidence and called three witnesses to support her defence.

14. The applicant, aged 56 and divorced with a 34 year-old son, claimed to have a good relationship with her family members including three elder brothers and one elder sister.  She said she first took heroin in 1990 and she “progressed” to “ice” in 1995.  The applicant admitted that she had been sent to DATC on many occasions for possession of drugs and other minor offences.  She also said that when she was with her family members in Australia between 2002 and 2004, she had been treated for her drug addiction.

15. The applicant told the court that she was released from DATC on 25 September 2012, but she continued to take “ice” on a daily basis.  She said when she was in DATC, she became friendly with a lady whose husband was a drug dealer and with his assistance, she was able to contact Ah Choo for the supply of “ice”.

16. The applicant said after purchasing “ice” from Ah Choo on three occasions beginning in early October 2013, each time for 7 grammes at $2,200 which would last her about 20 days, she was introduced to Fat Chai who lived closer to her and it was therefore more convenient for her to purchase drug from him.  She said she was able to get 7 grammes of “ice” for $2,000 from Fat Chai.

17. The applicant further said that in early December 2013, she bought 14 grammes from Fat Chai for $4,000 and she was told if she purchased more, it would save trouble.  On 2 January 2013, she purchased 14 grammes of “ice” from Fat Chai for $4,000, but between 20 and 30 January 2013 she bought “ice” from Ah Choo.

18. The applicant then talked about the occasion on 7 February 2013 when she was arrested.  She said Fat Chai phoned her at about 8 pm the day before, telling her that he had one ounce of good quality “ice”.  Fat Chai also said he was visiting his native place and would not be in Hong Kong for a long period.  He suggested that the applicant should buy a larger quantity in one go.  Fat Chai also said he would reduce the price from $8,000 to $7,800 and would also provide her with some different “ice” in small quantity and a pellet of heroin for free.

19. The applicant decided to accept Fat Chai’s offer, thinking that the quantity of “ice” would last her 1½ months.  According to the applicant, at around 5 pm on 7 February 2013, Fat Chai called and they arranged to meet at Ho Choi restaurant at around 7 pm.

20. The applicant said she paid Fat Chai $7,800 after receiving the packets of drugs inside the restaurant. She placed the large packet in her handbag and the smaller ones in the wallet. After Fat Chai left, she was intercepted and arrested.  The applicant said the police officer told her that it was just a case of possession and was therefore less serious.

21. The applicant’s home was searched and nothing suspicious was found.  The applicant was adamant that the drugs in question were for her own consumption.  She said it would be saver and cheaper to purchase 28 grammes of “ice” at one go.

22. The applicant, in her evidence, also accounted for the sources of the money she had used to pay for the drugs.  Her family members, including her son, a brother and a sister, gave evidence to the effect that they had financially supported the applicant during the period in question.

23. There was no dispute that the applicant had initialed a search for CCTV footage from Ho Choi restaurant which might partly support what she told the court.

24. The defence also produced, with the consent of the prosecution, the applicant’s record of drug-related offences, including possession of part 1 Poison, possession of a dangerous drug and shop lifting.  The applicant had been fined and imprisoned. She had also been sentenced to the DATC on many occasions.

The Judge’s summing up to the jury

25. The judge identified the issue, namely whether the applicant was in possession of the drugs for the purpose of unlawful trafficking, which was what the prosecution alleged against her.  In connection with the issue, the judge told the jury:

“…You now know that the prosecution case, in a nutshell, is that the defendant had in her possession 28.66 grammes of a mixture containing 27.92 grammes of methamphetamine hydrochloride which, as you know, is commonly called ‘Ice’, and a smaller mixture of 0.47 grammes of a mixture containing 0.37 grammes of heroin hydrochloride, referred to as heroin.

Given this quantity of narcotics and the packing, especially of the ‘Ice’, in the light of the evidence given by the two expert witnesses, Detective Senior Inspector Leung and Professor Tang, that the only and irresistible inference you can draw is that the defendant intended to traffic in those dangerous drugs. This is based, as I said, on the amount of the drugs and the time it would take an average addict to consume such an amount. That is of course for you to assess and to consider. Also the estimated street value of the dangerous drugs as compared to what the defendant claimed to pay for them…

The defence case, very simply, is that the dangerous drugs were purchased and would be used for self-consumption as she claimed at the scene… The defendant readily admits that the large resealable plastic bag of crystalline solid was in fact ‘Ice’, as were the two smaller packets found in the rabbit shaped purse, and the pellet was in fact heroin.  The defendant claimed to have purchased the 1-ounce bag of ‘Ice’ for $7,800 and the supplier, ‘Fat Chai’, gave her tow smaller packets of ‘Ice’ and the heroin by way of an additional amount.”

26. The judge repeated the evidence, both for the prosecution and for the defence and at the same time reminded the jury that they must consider the whole of the evidence.

27. The judge reminded the jury if they were not sure that the applicant had committed the offence of trafficking in dangerous drugs, they could only find her guilty of simple possession of the drugs.

28. The judge told the jury that they could draw inference i.e. to come to logical conclusions based on commonsense, but they must not look for evidence which was not there or speculate about what other evidence there might have been.  The judge warned the jury by saying:

“Be wary of drawing inferences, especially ones adverse to the defence if different scenarios of possibilities cannot be excluded. If that the case, you must draw the most favourable inferences as far as the defence is concerned.”

29. The judge concluded by telling the jury that even if they wholly rejected the applicant’s evidence, they still had to look at the prosecution evidence to decide if that evidence was sufficient to prove beyond reasonable doubt that the applicant possessed the drugs for trafficking in whole or part before they could convict her.

Grounds of Appeal

30. Ms Chow complained that the judge had not adequately directed the jury that the quantity of drugs in question did not necessarily give rise to an irresistible inference of trafficking and had failed to specifically direct or point to the jury that the defence evidence could support or was capable of supporting the defence case of self-consumption.

31. In her written submissions, Ms Chow also argued that the judge should have emphasized to the jury that no paraphernalia consistent with drug trafficking was found during the search of the applicant’s home and that the retail value of the drugs as calculated by Senior Inspector Ng was based on the street sales of under 5 grammes whereas the applicant’s purchase from Fat Chai was over 5 grammes.

Discussion

32. The issue at trial was a simple one, namely whether the applicant possessed the drugs in question for the purpose of trafficking or for self-consumption.

33. The prosecution alleged that the applicant possessed the drugs for the purpose of trafficking.  The prosecution did not rule out the possibility that part of the drugs was for self-consumption.

34. The defence contention was that the entire quantity of drugs was for self consumption and in support of that contention, the defence put forward the applicant’s drug addiction history, including the fact that she had been sentenced to DATC on many previous occasions.

35. It was not for the judge to say what quantity of drugs would give rise to the irresistible inference of trafficking.  The quantity of the drugs in question was certainly a relevant factor.

36. The judge did not suggest to the jury that they could rely on the quantity of the drugs alone to conclude that she was trafficking in those drugs.

37. The judge reminded the jury that the prosecution relied not only on the quantity of narcotics, but their packing and the experts’ evidence and directed the jury to consider whether the only irresistible inference was that the applicant had trafficked in the drugs in question.

38. It was not correct to suggest that the judge had failed to direct or point to the jury evidence supporting or capable of supporting the defence case of self-consumption.  As pointed out by Mr Edmond Lee in his written submissions, the judge had highlighted a total of 16 points, some of which were supportive of the applicant’s defence of self-consumption.

39. The judge had detailed the applicant’s evidence and evidence adduced by her to support her case of self-consumption.  The judge emphasized her evidence that as her addiction was getting stronger and stronger and more severe, 28 grammes of “ice” could only last 1½ month.  The judge reminded the jury the unchallenged evidence of her son, her sister and her brother as to how they assisted the applicant financially so as to enable her to pay for the drugs in question.

40. The jury was reminded by the judge that nothing suspicious was found during the search of the applicant’s home and that Senior Inspector Ng’s evidence on the retail price of the “ice” was based on street sales of about 5 grammes or less.  The judge also reminded the jury of the applicant’s drug history.  All these were said for the purpose of reminding the jury the defence case that the applicant had the drugs in question for her own consumption.  It was not, in our view, necessary for the judge to further emphasize to the jury how they should make use of such evidence.

41. In any event, the judge had reminded the jury:

“It is entirely for you to decide what evidence you accept, what you reject, and what you are unsure of. If I seem to give a view of the evidence or the facts with which you disagree, you must reject my views. If I mention or emphasize evidence you regard as unimportant then disregard that evidence. If I fail to mention evidence you regard as important then you must take it into account and apply it as you feel it should be applied to the case. You have after all heard all the evidence in this case.”

42. We were satisfied that the judge’s summing up to the jury was adequate, fair and reasonable.

43. Ultimately it was a question of fact on a relatively simple issue for the jury to decide.  On the evidence, the jury was entitled to conclude that the applicant had the drugs in question for the purpose of unlawfully trafficking.

44. We did not find the conviction against the applicant in any way unsafe or unsatisfactory.  We therefore dismissed the applicant’s application for leave to appeal against conviction.