HKSAR v. LEE WAI KEUNG

CACC 267/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 267 OF 2010

(ON APPEAL FROM HCCC NO. 356 OF 2009)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 19 July 2010, following a trial in the Court of First Instance before Beeson J and a jury, the applicant was convicted of the offence of trafficking in a dangerous drug, the drug – commonly called ‘ice’ – consisting of 20.59 g of a crystalline solid containing 20.34 g of narcotic.  The applicant was sentenced to 8 years’ imprisonment.  

2.  The applicant sought leave to appeal his conviction.

Background

3.  In the early hours of the morning of 29 June 2009, the applicant, who was in the company of a friend, was stopped by police and searched.  In the pocket of his trousers, three packets were found containing the dangerous drugs detailed in the indictment.  A number of empty plastic bags were also found on him.  Under caution, the applicant said that the drugs were for his own consumption and that the matter had nothing to do with his friend.

4.  When arraigned at trial, the applicant pleaded not guilty to the charge of trafficking but admitted that he had been in possession of the drugs.  The prosecution did not accept the plea and the trial proceeded on the single count of trafficking.

5.  The applicant chose to testify.  He admitted that he was a long-term drug addict and that in 2008 he had been convicted twice for possession of ‘ice’ for which he had been sentenced to imprisonment.  He said that, after his release from prison in February 2009, he had resumed his habit of taking ‘ice’.

6.  The applicant said that on the night of his arrest he had purchased the 20.59 g of ‘ice’, a quantity sufficient to last him about 21 days, because he had been offered a generous discount by his dealer.  He said that he had paid $8,500 for the drugs.  He said he preferred when possible to purchase larger quantities of drugs which were cheaper.  It also meant that he did not have to risk making constant trips to his dealer.

7.  It was the applicant’s testimony that, although he had no formal employment, he nevertheless had sources of income available to him sufficient to finance his drug habit.  The applicant spoke of having access to a sum of refunded bail money and of being in receipt of social welfare assistance.  In addition, it was his evidence that from 18 June 2009 until the day before his arrest he had earned good money smuggling ‘parallel imports’ into the Mainland.

8.  It was the prosecution case that a consideration of all the circumstances – the quantity of the drugs found on the applicant, their street cost and the empty plastic bags found on his person – proved that he must have been in possession of the drugs for the purpose of dealing in them.

9.  The prosecution disputed that the applicant had sufficient sources of income to enable him to finance his habit without trafficking.  In this regard, among other matters raised, the prosecution pointed to the fact that on 2 June 2009 the applicant had been arrested, and subsequently convicted, of going equipped for stealing: evidence that he had to resort to looking for ways to steal in order to finance his habit.

10.  The issue at trial was therefore a succinct one: did the applicant have the drugs in his possession not merely for self-consumption but for the purpose of dealing in them?  

The principal ground of appeal

11.  On behalf of the applicant, Mr Robert Pang advanced two grounds in support of his submission that the applicant’s conviction was unsafe and unsatisfactory.  The principal ground was of substance.  The secondary ground, in our view, had no merit.

12.  The principal ground was to the effect that, the applicant having admitted that he had the drugs in his possession but having asserted that they were for his own consumption, it was incumbent on the charge to inform the jury of the lesser alternative offence of simple possession and to leave that alternative verdict open to them.  This, however, the judge failed to do.  Her failure not only constituted a material misdirection but worked to the potential prejudice of the applicant.

13.  The applicable principle has been defined by the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, Chan PJ saying the following:

“12. It is not disputed that the judge in a criminal trial is under a duty to place before the jury all possible alternatives which are open to them on the evidence. He is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused. As Lord Clyde in Alexander Von Starck v The Queen [the citation being [2000] 1WLR 1270] put it at p. 1275:

‘It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.’

13.       The reason for imposing such a duty on the trial judge is obvious: it is in the public interest that an accused charged with an offence is properly dealt with according to the law.  He should be convicted of, but only of, an offence which is proved to have been committed by him.”

14.  Not every possible alternative has to be placed before the jury.  As Chan PJ observed (para. 15):

“…the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict. That the threshold is, as Lord Clyde put it, a low one is consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt.”

15.  As it was, the judge did not leave it open to the jury to convict the applicant of the lesser alternative of simple possession.  She should have done so and her failure constituted a misdirection.

16.  It must be said, however, that the judge had intended to follow the correct course but, in a discussion with counsel before delivering her summing-up, was dissuaded from doing so.

17.  For reasons which we find difficult to comprehend, defence counsel appears to have been concerned that, the applicant having tendered a plea of guilty to simple possession at the arraignment, if an alternative verdict was left open to the jury, they may return a verdict inconsistent with that plea.

18.  It would appear that counsel and the judge were under the belief that, the applicant having tendered a guilty plea to the alternative offence of simple possession, it remained open to the judge, should the applicant be acquitted of trafficking, to then formally convict him of the lesser alternative and pass sentence.  That is not the law.  In the event that the prosecution refuses to accept the plea to a lesser or alternative offence, as happened in the present case, that plea is treated as a nullity and does not revive in the event of an acquittal on the count put before the jury: see Archbold Hong Kong 2012, 4-28, page 246.

19.  If the judge had remained silent on the issue of the lesser alternative offence of simple possession, leaving the jury with the stark alternative of trafficking or nothing, clearly this application for leave to appeal against conviction would have to be allowed.  But the judge did not do so.

20.  Instead she informed the jury that, while at the commencement of the trial the applicant had pleaded not guilty to trafficking, he had pleaded guilty to possession of the drugs in question.  In this regard, she said:

“There is no question about the identity of the person concerned, or the type of dangerous drug, or the quantity of the dangerous drugs, nor is there any argument about the possession. The defendant admits that he had that drug in his possession and he said that he had that in his possession for his own consumption. He pleaded guilty at the outset of this trial to possession of that dangerous drug but denied trafficking.”

21.  Having informed the jury that the applicant had pleaded guilty to possession of the drugs, the judge directed the jury in the following terms:

“So the question you have to decide is simply, did he traffic in the dangerous drug? He has already admitted that he had them for his own consumption. Did he have them for his own consumption, as he says, or was he trafficking? It is only if you are sure, from the evidence put before you, that he was trafficking in the drugs that you can find that he is guilty.”

22.  The judge directed the jury as to what constituted a dangerous drug:

“In this case, the defendant says that he knew that the substance was a dangerous drug. It has been established by the Government Chemist Certificate that it was a dangerous drug. There is no suggestion that he was licensed or authorised by law to traffic in the drug or have it in his possession. So the point of contention is whether he trafficked in a substance. He says that he possessed the substance but he was not trafficking in it.”

23.  As to the concept of ‘possession’, the judge said:

“For ‘possession’ there is no difficulty because the defendant has admitted possession. A person is in possession of an object if it is in his actual physical custody, for instance, in his hand or his pocket, or it is otherwise within his control, for instance in his desk or bedroom, and he knows it is there and he has the intention to exercise custody or control over that item.”

24.  As to the issue to be decided, the judge directed the jury that:

“If … you cannot be sure that the accused had the drugs for trafficking but you believe that he had them, or may have had them, for his own consumption, you must give him the benefit of your doubts and acquit him of the charge of trafficking in dangerous drugs.”

25.  Mr Pang submitted that these directions were insufficient to avoid the very real mischief to which the failure to leave open to the jury the alternative verdict of simple possession gave rise.

26.  Mr Pang conceded that, if the judge had directed the jury that, if they acquitted the applicant of trafficking, he would nevertheless be punished for the offence of possession to which he had pleaded guilty at the commencement of the trial then it was arguable that the mischief would have been avoided.  Mr Pang recognised that a direction to the effect that the applicant remained subject to punishment for the offence of possession to which he had pleaded at the commencement of trial would be wrong in law.  But such a direction, he said, would nevertheless have resulted in the jury considering their verdict within the context of the two alternative offences, that is, in the knowledge, at least as they believed it to be, that, if the applicant was acquitted of trafficking, he would still be punished for the lesser alternative offence of possession.

27.  As it was, said Mr Pang, while the judge may have informed the jury that the applicant had pleaded guilty to possession of dangerous drugs, she had failed to make clear the consequence of his plea to simple possession.

28.  Mr Pang argued that these failures not only prevented the jury from being able to “reach a sound conclusion on the facts in light of the law applicable to them”: Alexander Von Stark v R (para 13 supra) but also acted to the applicant’s potential prejudice.  It did so, submitted Mr Pang, because, being left the choice of conviction or nothing, there was always the risk that, rather than seeing the applicant perhaps walk free despite what was clearly some form of egregious criminal conduct, the jury may have been inclined to convict of the single offence in respect of which they had the power to pass verdict.

29.  In support of this latter submission, reference was made to HKSAR v Li Jin [2010] 4 HKLRD 614, a decision of this Court differently constituted.  The appellant in that case had been charged and convicted of trafficking in a dangerous drug.  On the evidence it was open to the jury to convict the appellant on the basis that, being the tenant of the premises in which the dangerous drugs were found, she had merely permitted another to store the drugs there.  The jury however were not directed on this alternative.  In allowing the appeal, this Court said:

“…if the section 37 offence had been left for the consideration of the jury as an alternative there was some prospect, less than fanciful, of them convicting upon it and acquitting of trafficking. There was a danger that the jury may have judged the appellant’s conduct in permitting the storage of the drugs to be reprehensible and thereby have been disinclined to see her walk free, adding a following wind to the directions that blew toward a finding of joint possession.”

30.  For the respondent, Mr Man laid emphasis on the fact that, while the jury had not had the alternative offence of simple possession formally put before them, they were directed that the applicant had pleaded guilty to that alternative offence and would surely therefore have deliberated on the basis that, if they acquitted the applicant of trafficking, he would be subject to punishment for such an offence.

31.  That may or may not be so.  But that is to invite speculation on our behalf and in that we should not engage, not least when a period of substantial imprisonment is at stake and when this was a 5-2 majority verdict.    In the result, the safety of the applicant’s conviction must be in doubt.

Conclusion

32.  For the reasons given, the application for leave to appeal is allowed.  Treating the application is the appeal itself, the appeal is allowed and the sentence set aside.

Retrial

33.  Whether there should a retrial was an issue canvassed at the end of the hearing.  Mr Man, for the respondent, submitted that, should the application for leave to appeal against conviction be successful, there should be an order for a retrial.  We agree.  This appeal has been allowed on the basis of a misdirection as to law not on the basis of an insufficiency of evidence or matters similar.  Weighing all relevant matters, we are satisfied that the interests of justice require a fresh trial and we order a retrial upon a fresh indictment.  The applicant is to remain in custody pending the re-trial.