HKSAR v. PEI YUK KAM

CACC 213/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2010

(ON APPEAL FROM DCCC NO. 1378 OF 2009)

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Hon Hartmann JA:

Introduction

1.  On 26 May 2010, following a trial in the District Court before His Honour Judge Tallentire, the applicant was convicted of two offences; first, that of doing an act preparatory to manufacturing a dangerous drug, the drug being methamphetamine, contrary to section 6(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap. 134 and, second, resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212.

2.  In respect of the first charge, the applicant was sentenced to 4 years and six months’ imprisonment.  In respect of the second charge, he was sentenced to 2 months imprisonment, this sentence to run concurrently with the first.

3.  The applicant sought leave to appeal his conviction of the first charge only and the sentence imposed in respect of that conviction.

4.  Having heard submissions, we dismissed the application for leave to appeal against conviction, saying that we would give our reasons later.  We do so now.  In respect of the application for leave to appeal against sentence, we reserved our judgment.  That judgment is now given.

Background

5.  At 8.30 on the morning of 11 August 2009, police raided an apartment in a building in Mongkok.  At the time of the raid, the apartment was occupied by the applicant and a second man, Wu Weixiong, who was the applicant's co-accused at trial.

6.  The police raid commenced when Wu was seen to step out of the apartment carrying garbage bags.  When apprehended, Wu put up a struggle and shouted a warning to the applicant who was inside the apartment.

7.  The police were forced to break open the door to the apartment.  When they did so, they saw the applicant running to the toilet.  He was carrying a glass containing brown liquid.  He climbed onto the toilet seat and opened a window, the clear intention being to dispose of the glass and its contents.  The applicant, however, was grabbed by one of the police officers.  The applicant resisted and a struggle ensued during which the glass fell to the floor and was smashed.  Swabs taken of the spilt liquid revealed traces of paracetamol.

8.  As a result of these actions both Wu and the applicant were charged with resisting police in the due execution of their duty and both were found guilty. There has been no appeal against these convictions.

9.  Inside the apartment, various powders, liquids and chemicals were found, many of which were displayed openly on a table.  It was the uncontested evidence of the Government forensic scientist that these substances, once a couple of missing ingredients were added, could be used to alter the state of methamphetamine, changing it into the more potent drug, methamphetamine hydrochloride, commonly known in Hong Kong as ‘ice’.  In short, less only a couple of ingredients, the raw materials were present for the manufacture of ‘ice’.

10.  While the substances included a number that could be used for domestic purposes, for example, acetone, pseudoephedrine, sodium carbonate, hydrochloric acid and isopropyl alcohol, there were other substances which had no domestic use: these included chloroform and the chemical methylamine, both being ingredients in the manufacture of ‘ice’.

11.  In addition to the powders, liquids and chemicals, various articles were discovered.  These included electronic scales, scissors and also a number of pots and bowls containing quantities or traces of chemicals used in the manufacture of ‘ice’.  In addition, there was a hot plate (which was on) and a refrigerator with its own freezer compartment.  Fundamental to the manufacture of ‘ice’ is some means for heating and then cooling: the hot plate provided the former, the freezer the latter.

12.  A small quantity of ‘ice’ – 0.49 of a gramme – was also found in the apartment in a plastic bag. 

13.  Finally, in a bedside table drawer a paper was found containing what was effectively a recipe for one method of manufacturing’ ice’.

14.  Having examined the exhibits collected in and outside the apartment, it was the opinion of the Government forensic scientist that there was insufficient evidence to prove that a “viable manufacture” of ‘ice’ had taken place.  This was because, in respect of the two recognised processes for the manufacture of the drug, no traces of certain required chemicals could be found.

15.  But if the historic fact of “making, adulterating, purifying, mixing, separating or otherwise treating” methamphetamine in order to convert it into ‘ice’ could not be proved, the judge was satisfied that the evidence did prove that at some time in the 20 hours or so prior to the police raid the applicant had – as charged – done an act or acts preparatory to the intended undertaking of the manufacturing process, no matter how small-scale or unsophisticated that process was to be.

16.  In coming to this determination, within the context of the evidence as a whole, the judge placed particular reliance on the following evidence.

17.  First, while the judge was prepared to accept that Wu had been an overnight guest only at the apartment, never having been there before, he found that the applicant had a far more enduring, far closer connection with the apartment.  Even if it could not be proved that the applicant was the formal tenant of the apartment, the judge gave credence to the evidence of a prosecution witness who said that on one occasion the applicant had paid him a sum of money in respect of rent for the apartment and that, from what he could see, the applicant seemed to be living in the premises.  The judge also took note of the fact that, even though the applicant claimed to reside at an address somewhere else, when he needed to supply a residential address for the purposes of receiving social welfare assistance, he had given the address of the apartment itself as his place of residence.

18.  Second, on the applicant’s own admission he had been in the apartment since noon the day before; in short, when the police raid took place, he had been in occupation of the apartment for some 20 hours, the only other occupant for part of the time being Wu, a stranger to the apartment whom the applicant had permitted to stay overnight.

19.  The applicant testified that he had only come to the apartment the day before in order to pack some clothing for a female friend who was now in the Mainland.  This assertion was rejected by the judge who observed:

“It appears even on your own evidence you were there between 9 and 10 hours before the first phone call to arrange for [Wu] to stay. That is a very long time to pack a small bag of clothes. It does not make sense. It is not true”

20.  Third, the judge rejected the applicant’s testimony that he had no knowledge of the presence in the apartment of the incriminating chemical substances and paraphernalia.  He came to this finding on two bases.  First, he was satisfied that the applicant was very well acquainted with the apartment and what was in it.  Second, when the police broke into the apartment, his actions in attempting to dispose of a glass containing liquid adulterated with paracetamol were indicative of the fact that he knew that illegal activity had been taking place or was set to take place.

21.  Fourth, although it was denied by the applicant, the judge accepted the testimony of the applicant’s co-accused, Wu, that, when the applicant gave him permission to spend the night in the apartment, the applicant asked him to bring to the apartment two liquids, both of which are ingredients in the manufacture of methamphetamine hydrochloride, the first being alcohol and the second being acetone (which is to be found in domestic nail varnish remover).  Wu testified that, as requested by the applicant, he brought both the alcohol and the nail varnish remover.  In this regard, a bottle of isopropyl alcohol was found in the apartment while two empty bottles of nail varnish remover were recovered from the garbage bags which Wu was seen carrying out of the apartment.

22.  Concerning the nail varnish remover, the judge found that the only inference to be drawn from the discovery of the empty bottles was that in some way the applicant had, at some time after the delivery of the full bottles by Wu the night before, used the contents in preparation for the manufacture of ‘ice’.

23.  In convicting the applicant, the judge came to the following finding:

“In conclusion, the only inference I can draw is that you ... did indeed perform acts preparatory to the manufacture of ‘ice’ and that the recipe found, Exhibit G8, was your roadmap to proceed to completion.”

The grounds of appeal against conviction

24.  There were two grounds of conviction against appeal, both intended to support the submission that the applicant’s conviction was unsafe and unsatisfactory.

The first ground

25.  The first ground was based on the alleged failure of the prosecution to particularise the preparatory acts said to identify the applicant’s participation in the process of manufacture.  In the result, so it was submitted, there was a danger of the applicant being convicted on the basis only of his passive presence in the apartment.

26.  As counsel submitted, it is correct that, before the trial commenced, the prosecution did not specify each and every act relied upon.  That being said, defence counsel did not seek such particulars.  Counsel no doubt saw no reason to do so.  The evidence was limited and, within the context of that evidence, the alleged preparatory acts were self-evident.  Nothing therefore arises out of the failure of the prosecution to supply particulars.

27.  Nor is there any basis for submitting that the judge may have fallen into error by convicting the applicant on the basis only of his presence in the apartment.  Occupation of the apartment was one of the primary facts relied on by the judge but only as one of several bases for drawing the inference that the applicant had during his period of occupation committed acts preparatory to the manufacture of ‘ice’.  In a careful set of findings, the judge made clear both the bases upon which he drew his inferences and their nature.

28.  What had happened prior to the arrival of the police was largely unknown.  Equally, what was intended to happen if events had not been interrupted by the arrival of the police was unknown.  But, on the evidence, the judge could be satisfied of two matters.  First, that the applicant had had control and custody of the substances and paraphernalia found in the apartment and, second, that the applicant had undertaken specific acts related to the manufacture of ‘ice’ by asking Wu to bring two ingredients to the apartment and then using certain of those ingredients in some way connected with the intended adulteration, purification, mixing or treating of methamphetamine in order to convert it into ‘ice’.

The second ground

29.  This ground was based on the assertion that, if one of the preparatory acts consisted of the applicant asking Wu to bring ingredients to the apartment and then in some way using some of those ingredients, there had been a failure on the part of the judge to adequately analyse the relevant evidence.

30.  As to the relevant evidence, counsel pointed to the fact that it was Wu who had taken out the garbage containing the empty bottles of nail varnish remover and not the applicant.  In light of the judge’s findings of fact, nothing turned on this.  The judge accepted Wu’s evidence that he had brought the two bottles of nail varnish remover to the apartment at the applicant’s specific request and had given the bottles to the applicant.  The fact that the next morning, after the applicant had used the contents of the bottles, Wu disposed of the empty bottles in the garbage was neither here nor there.

31.  Counsel further pointed to the fact that, while acetone – the chemical to be extracted from the bottles of nail varnish remover – could be used in both recognised methods of manufacturing ‘ice’, there were other chemicals in the apartment which fulfilled the role of acetone in the manufacturing process set out in the recipe found in the bedside table.  Again, nothing turned on that.  The presence in the apartment of possible substitutes does not alter the fact that the chemical, acetone, had been ordered and had in some way been used, the only reasonable inference open to the judge being that it had been used in preparation for a process of manufacturing ‘ice’.

Appeal against sentence

32.  Taking into account that the manufacturing operation discovered in the apartment was small scale and unsophisticated, that the quantity of chemicals found was relatively small and that certain necessary ingredients were missing, it was submitted on behalf of the applicant that the term of four years and six months’ imprisonment imposed by the judge was manifestly excessive.

33.  As this Court observed in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, at 586, the offence of drug manufacturing is the most serious of all drug-related offences, graver than trafficking and in all but the most exceptional cases warranting a heavier sentence.

34.  Doing or offering to do an act preparatory to or for the purposes of manufacturing a dangerous drug, while it is a separate activity, being in anticipation of, or co-lateral to, the manufacturing process itself, is nevertheless an activity so integral to the manufacturing process that it must be viewed with similar seriousness.  The intention of the legislature in this regard is unmistakable.  S.6 (1) of the Dangerous Drugs Ordinance, Cap. 134, creates both the offence of manufacturing a dangerous drug and the offence of doing or offering to do an act preparatory to or for the purpose of manufacturing such a drug, the latter activity being recognised as integral to the former.  In respect of both offences s.6 provides for the same sentence, that of a fine of $5 million and life imprisonment.

35.  In R v Wong Chun Ping [1984] HKLR 247, at 257, Roberts CJ said that only in exceptional cases, for example when the capacity of the manufacturing equipment is very small, should a court consider a sentence of less than 10 years’ imprisonment on a conviction for manufacturing.  In adopting this approach, this Court in Kan Kong Fai, at 586, held that, even when the scale of the operation is very limited, an appropriate minimum starting point should be one of six years’ imprisonment.

36.  Doing or offering to do a preparatory act may or may not reflect a lesser degree of moral culpability than participating in the manufacturing process.  Each case will depend on its own facts.

37.  In the present case, the judge was well aware of the authorities indicating that manufacturing and doing an act preparatory to or for the purposes of manufacturing a dangerous drug should attract similar sentences.  He was also aware of the direction in Kan Kong Fai that, even when the scale of operation is very limited, a minimum starting point for manufacturing should be six years.

38.  The judge recognised that the intended manufacturing operation put in place in the apartment was small-scale and unsophisticated.  The quantity of chemicals was limited and a number of necessary chemicals were still missing.  Nevertheless, on the authorities, no matter how limited and no matter how crude the intended operation, he was obliged to take as his starting point a sentence similar to the starting point of six years that would have to be applied if the applicant had been convicted of manufacturing.  As it was, in determining an appropriate sentence for the offence of doing an act preparatory to or for the purpose of manufacture, having taken all mitigating factors into account, the judge was prepared to give a discount of 25%: hence the sentence of four years and six months.

39.  The judge did not condescend to state why he had chosen that discount.  But, whatever the reason, it was a substantial discount and, in the circumstances, we do not see that the sentence could be considered in any way manifestly excessive.  The application for leave to appeal against sentence must therefore be dismissed.