HKSAR v. LEE HOI CHEONG

HCMA67/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 67 OF 2009

(ON APPEAL FROM KTC5368 OF 2008)

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J U D G M E N T

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1.  The appellant, Lee Hoi-cheong, was convicted after trial in the Magistrates Court at Kowloon of one count of trafficking in a dangerous drug and sentenced to serve 18 months' imprisonment.  He now appears against his conviction only.  He was represented by a duty lawyer at trial.

2.  The prosecution's case was agreed and subject to a section 65C Criminal Procedure Ordinance admission.  It was agreed that on 2 July 2008, a police officer found the appellant acting furtively outside Argyle Centre in Nathan Road.  The police officer stopped and searched him, and found 50 packets on him, which together contained 9.73 grammes of a mixture containing 5.93 grammes of heroin hydrochloride.  The appellant was cautioned and said to the officer, "Ah Sir, these 50 tablets of white powder are bought by me for my own consumption." 

3.  The appellant chose to give evidence.  He told the magistrate that he had been a drug addict for 30 years and had fallen back into taking drugs.  On 2 July, he had intended to buy just one packet for his own consumption, but the drug-pusher persuaded him to buy a total of 50  packets at a reduced price of $5,000.  The appellant claimed that he had $5,000 with him at the time. 

4.  The appellant gave evidence of his income.  He had been released from Hei Ling Chau Drug Addiction Treatment Centre less than one month before the commission of this offence.  He spoke as to his means over that one month period.  I will deal with this later in this judgment as it is the nub of the appellant's appeal that the magistrate misunderstood and misapplied this evidence. 

5.  The magistrate disbelieved the appellant.  In relation to his evidence as to his means since his release from the Drug Addiction Treatment Centre, she said this in her reasons for verdict:

"The appellant explained that since his release from Hei Ling Chau in June 2008, he had received $1,600.00 per month from Comprehensive Social Security Assistance, about $2,000.00 from casual work, and $3,000.00 from his older sister - total $6,600.00 to $7,500.00 - and from this he had saved over $5,000.00 which he had used to buy the drugs.  However, to save this amount, the appellant would have to live on $50.00 to $78.12 per day without taking into account any money spent on drugs.  If the appellant became addicted again at an average of $140.00 to $150.00 per packet, as he said, then his expenses would have been at least $200.00 per day taking into account, daily necessities, utilities, transport, etc.  The figures did not match up and I did not believe him.  I also found it incredible that the appellant would go out with all his savings of over $5,000.00 on him if he were intending to buy only one packet of heroin.  He was also contradictory and evasive in his account and I found him unreliable and I did not believe him."

6.  The appellant says before me that the magistrate misunderstood his evidence.  He says she failed to take into account that he said he had two lots of $3,000.  One representing his savings on his release from Hei Ling Chau Drug Addiction Treatment Centre and the other representing a gift of $3,000 from his sister to tide him over on his release. 

7.  When this case first came before me on 6 March 2009, I called for a transcript of the appellant's evidence to clarify this matter.  I now have that transcript and what was said was this.  It is at page 29 of the appeal bundle and is in the appellants examination-in-chief.

'Q.  On the day of arrest, how much savings have you had roughly?

A.  At that time, I had $3,000 savings.

Q.  So $3,000 plus $1,600."

(The $1,600 refers to the CSSA payment.) 

"Q.  That's only $4,600.  And any other earnings?

A.  I was discharged from Hei Ling Chau in June.  My sister worried about my living after I was discharged so she gave me $3,000 to tied me over.

Q.  So on that day of arrest, you have more than $4 -- more than $5,000."

A.  Correct.

Q.  And how much you have to pay for the drugs?

A.  $5,000."

8.  This matter was not clarified in cross-examination; it should have been.  The issue was did the appellant have $3,000 in savings and an additional $3,000 by way of a gift from his sister?  I note that the lawyer's question to the appellant was "and any other earnings?"  To which he replied that his sister had given him $3,000.  Reading the transcript literally, it would appear that this gift was in addition to the $3,000 savings he claimed he had. 

9.  The magistrate failed to take this into account in her calculation of the defendant's daily expenditure, which was one of the factors from which she drew the inference that his means were inadequate to fund his purchase of the drugs in question for his own use.  I am reluctantly drawn to the conclusion that the magistrate misunderstood the defendant's evidence in arriving at the conclusion she did.  This must amount to a material irregularity in the defendant's trial and must, of necessity, lead to my quashing his conviction for the offence of trafficking in a dangerous drug and remitting his sentence.

10.  However, as the appellant admitted simple possession and a conviction for an offence under section 8 of the Dangerous Drugs Ordinance is a statutory alternative to a charge of trafficking in dangerous drugs, I, in exercise of the powers given to me, now convict him of an offence of possession of dangerous drugs contrary to section 8 of the Dangerous Drugs Ordinance.

11.  This leads on to the vexed question of what his sentence for that offence should be?  I originally had in mind imposing such a sentence of imprisonment as would permit his release from prison today, taking into account that he has now served, I believe, four months' imprisonment.  However, if I were to sentence him to imprisonment, I would have to comply with the provisions of section 54A of the Dangerous Drugs Ordinance which require me to call for a Drug Addiction Treatment Centre Suitability Report on the appellant before to sentencing him.  Such a report would serve no useful purpose  in the circumstances of this case and this appellant. 

12.  As a practical matter, this case is best dealt with by the imposition of a financial penalty.  I therefore fine the appellant the nominal sum of $1,000 for his offence of simple possession.  I give him 14 days in which to make payment.  He will serve 14 days' imprisonment in default of payment.