HKSAR v. PHAM THI NGA

CACC 224/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 224 OF 2011

(ON APPEAL FROM DCCC NO. 875 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the Judgment of the Court):

1.  The applicant seeks leave to appeal against her conviction on 30 May 2011 after trial by Deputy District Court Judge A Yuen of three charges of unlawfully trafficking in dangerous drugs, contrary to section 4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and against the sentences of imprisonment imposed in consequence, in total 4 years imprisonment. In her application for leave to appeal against conviction she is represented by Mr Andrew HY Leung, who represented her trial, and Mr Gregory Leung. She appears by herself in the application for leave to appeal against sentence.

THE CHARGES

2.  The three charges stipulate three different places at which it was alleged that on 2 March 2010 the applicant was unlawfully trafficking in dangerous drugs: firstly, outside premises at 43, Nai Wai, Tuen Mun, New Territories; secondly, inside those premises; and thirdly, at premises at Flat B, 4^th Floor, Lakeshore Building, 7 Tseng Choi Street, Tuen Mun, New Territories.

THE TRIAL

The prosecution case

3.  The prosecution case at trial was that the applicant was intercepted by police officers at about 10:30 a.m. on 2 March 2010 after she had emerged from the premises at 43, Nai Wai.  Having emerged from the premises through a wooden door and wooden grille she was seen to close and lock them.  The cocaine and heroin the subject of charge 1 were found in a handbag that she was carrying.  The cocaine was contained in a plastic bag and the heroin in 115 sealed plastic straws wrapped in tissue paper.  Following those discoveries, having been arrested and cautioned for unlawfully trafficking in those dangerous drugs, the applicant said:

“ These dangerous drugs are all mine. I only use them for my own consumption.”

4.  Although a police officer told the applicant that he was possessed of a search warrant for those premises, which he read to the applicant, which permitted the police to force entry the applicant did not respond positively to their request that she open up the premises.  As a result, having failed to open the lock to the metal grille by using combination codes, which he had guessed at, that police officer prised opened the lock.  However, he was successful in guessing the combination code for the second lock, namely the one for the wooden door, and the police party entered the premises as did the applicant.  Inside the premises, police officers found the dangerous drugs the subject of charge 2, namely 12.29 grams of heroin hydrochloride contained in 260 sealed straws found wrapped in five separate bundles of tissue paper and 73 midazolam tablets contained in a medicine bag bearing the applicant’s name.  Those items were found in a black travelling bag in the living room.  Paraphernalia for unlawful trafficking in dangerous drugs was found elsewhere in the premises, including a blender, two electronic scales, cutters and boxes of plastic straws.  Also, they found a rental receipt for the applicant’s Lakeshore premises for the month of October 2009.  Having been arrested and cautioned for the offence of manufacturing dangerous drugs, the applicant said, “This house is not mine.”

5.  At about 1:00 p.m. on 2 March 2010 other police officers found the dangerous drugs the subject of charge 3, namely 0.48 grams of cocaine and 170 midazolam tablets in premises at Flat B, 4^th Floor, Lakeshore Building, 7 Tseng Choi Street, Tuen Mun, of which the applicant was the tenant.

6.  In re-examination of PC 3204, the prosecution sought to adduce into evidence his notebook, signed by the applicant in respect of the circumstances of her arrest.  Objection was taken to the admissibility of the evidence and a voir dire was conducted.

7.  PC 3204’s notebook entry stated that he had arrested and cautioned the applicant that morning for the offence trafficking in dangerous drugs, to which she had replied, “These dangerous drugs are all mine.  I only use them for my own consumption.”  The notebook entry asserted that when asked to sign the notebook entry the applicant had said, I can’t read Chinese.  I’ll first wait for my lawyer to arrive.”  Then, the notebook entry described the arrest and cautioning of the applicant in respect of the dangerous drugs found inside 43, Nai Wai and her denial, “The house was not mine”.  Again, the notebook recorded the applicant as having said that she would only sign after a lawyer had arrived.

8.  Next, the notebook entry stated that at Tuen Mun police station PC 3204 post-recorded the earlier circumstances of the arrest and cautioning of the applicant.  Now, it was asserted that the applicant had been arrested outside 43, Nai Wai for trafficking in dangerous drug, now specified to be 54 pellets of suspected cocaine and 115 straws suspected of containing heroin.  Then, the notebook entry repeated the earlier response of the applicant.  The same approach was taken in the subsequent notebook entry in respect of the dangerous drugs found inside 43, Nai Wai, namely that the various quantities and their containers were now stipulated.

9.  In the mid-afternoon of 2 March 2010 at Tuen Mun police station, with the assistance of a Vietnamese interpreter and in the presence of the applicant’s legal representative, PC 3204 read over his notebook entry to the applicant.  Having been asked if she wished to make any alteration, correction or addition to that record the applicant said, “No answer”.  Then, having been asked first what she meant by that answer and after the original question had been repeated the applicant said “No”.  The applicant signed the notebook entry after writing that declaration that she did not wish to make any alteration correction or addition to that record and the statement was true and she made it of her own free will.

10.  Detective Senior Inspector Lewis testified as to the average retail price, namely sale at street level to abusers, of the various dangerous drugs seized by the police at the time of their seizure.  In respect of cocaine he said that the retail price was $902 per gram and that of heroin $924 per gram.  In respect of midazolam tablets he said that the price per tablet was $54.

The defence case

11.  The applicant gave evidence in both the special issue and the general issue.

(i) The special issue

12.  In respect of the special issue, the applicant testified and called her legal representative, a legal executive, who had advised her prior to and had been present at the making of a post-record.  She said, having been advised to give no answer to questions of the police, that is what she had said, namely “No answer”, when asked if she needed to make any correction, alteration or addition to the post-record.  She had responded in the negative when the question was repeated by the police officer.  Then, she had signed the record.  She did so because she had made it clear that she was not answering questions.

13.  Ng Kam Bun, a legal executive, confirmed that he and a trainee solicitor of the firm at which they worked had advised the applicant prior to the making of the post- record in the terms to which the applicant testified.

(ii)   The general issue

14.  The applicant testified that she had not been intercepted outside 43, Nai Wai.  Rather, she had been intercepted at a football pitch some ten minutes walk away.  There, she had purchased 54 pellets of cocaine, which she accepted had been found in her handbag when it was searched after she had been intercepted.  She had placed them into a medicine bag bearing her name.  She told police that the cocaine was for her own use.

15.  On the other hand, she said that there was no heroin in the handbag.  Far from having emerged from premises at 43, Nai Wai she had never been in those premises until the police took her into the premises having escorted her there from where she had been intercepted at the football pitch at the Nai Wai playground.  Having made telephone calls the police officers entered code numbers into the two combination locks, respectively on the grille and wooden door, and entered the premises.  Neither lock was forced.  Inside the premises, the police found other dangerous drugs, heroin and tablets of midazolam.  A police officer removed the medicine bag, in which she had stored the cocaine, from her handbag and placed the tablets of midazolam in it.  Similarly, he removed a rent receipt in her name for her Lakeshore premises, which the police than pretended to ‘find’ in the premises at 43 Nai Wai.  The dangerous drugs were placed on a table and she was urged to admit that they belonged to her.  She said :

“ This house is not mine and the things on the table are not mine …. I would not admit to things which are not mine.”

16.  The applicant accepted that the small amount of cocaine and the 170 midazolam tablets found in her Lakeshore premises belonged to her.  She had obtained the midazolam tablets on prescription for insomnia.  She had been prescribed that medicine by her doctor on a number of different occasions, beginning in July 2009.  She had been told that if necessary she could take five to six tablets a day.

REASONS FOR VERDICT

17.  In admitting into evidence the post-record of notebook entry of PC 3024 signed by the applicant the judge noted that there was no allegation of the use of inducements, force or threat to the applicant and found that the statement was taken in a “proper manner”.  As a result, he found that the applicant signed the notebook, “voluntarily, and nothing warrants the court” to exclude the post-record.

18.  In convicting the applicant of charge 2, the judge did so only in respect of the midazolam tablets.  Noting the evidence that Le Van Canh, a prosecution witness, was named in the tenancy agreement as the tenant of those premises, the judge stated that he was unable to draw the irresistible inference that the heroin “must belong to the defendant”.  Similarly, the judge found that it was possible that the small quantity of cocaine stipulated in charge 3 was for the applicant’s own use.  Accordingly, the applicant was convicted of unlawful trafficking in respect of the midazolam tablets only.

19.  Having summarised the evidence of the prosecution witnesses and that of the applicant, the judge found the evidence of the latter to be “inherently incredible” and cited specific examples of her testimony that he rejected.

20.  In finding the prosecution witnesses, save for the tenant of 43, Nai Wai, truthful and honest witnesses the judge noted that the evidence of the police witnesses “support each other in all material aspects”.

21.  Applying the evidence as to the retail price of cocaine and heroin the judge calculated that the total value of the cocaine and heroin, the subject of charge 1, was $31,800.  Noting the applicant’s evidence as to her income, namely a recipient of subsidies from the United Nations and the beneficiary of contributions from her boyfriends, the judge found that the applicant could not afford to have that value of dangerous drugs in her possession and inferred that she had it for the purposes of unlawful trafficking.  By the same method, the judge calculated that the retail price of the 73 and 170 tablets of midazolam, the subject of charges 2 and 3, was $3,900 and around $9,000 respectively.  In consequence, he inferred that the applicant possessed those tablets for the purpose of unlawful trafficking.

GROUNDS OF APPEAL AGAINST CONVICTION

22.  The grounds of appeal are advanced by Mr Andrew Leung under three heads, namely that:

(i) the judge erred in finding all but one of the prosecution witnesses credible;

(ii) the judge erred in disbelieving the applicant's evidence; and

(iii) the judge erred in not excluding from evidence the post-record made by PC 3204 of the circumstances of the applicant’s arrest, in particular her responses.

The credibility of the prosecution witnesses

23.  It was contended that the judge erred in finding that the prosecution witnesses, save for the tenant of 43 Nai Wai, were credible in light of what were submitted to be the contradictions within their evidence and the inherent inconsistencies and improbabilities of that evidence.

24.  The judge had erred in failing to give weight to the fact that, although attempts had been made to identify fingerprint impressions, none of that of the applicant had been found in the premises, in particular, on the padlocks to the doors.  Of the latter matter, the four police officers who said that they have witnessed the applicant emerging from the door way of 43 Nai Wai also that she had handled one or both of the padlocks.  Further, the judge erred in accepting the evidence of Sergeant 46343 and PC 3830 that the latter had succeeded in guessing the combination code of the lock to the wooden door.  Then, it was submitted that it was inherently unlikely that police officers armed with a search warrant and possessed of a crowbar would not have made a forced entry to the premises.

25.  Next, it was contended that the judge ought to have rejected the evidence of PC 3204 as unreliable, given his testimony that he was not sure whether a rental receipt in the name of the applicant in respect of the Lakeshore premises had been found in her handbag.  If it had been found in her handbag, rather than in the premises at 43, Nai Wai, that evidence was consistent with her testimony and her allegation that she had been framed.

26.  Next, it was contended that the judge had erred in determining that the landlord of 43, Nai Wai was a credible witness, whereas the tenant, Le Van Canh was not credible, and in making the latter finding on the basis that he had been unable to explain how his property had been found in those premises.  On the contrary, he had given an explanation for how it came about that his passport and a pair of shoes had been found inside 43 Nai Wai, notwithstanding the fact that he had never moved into the premises.  He said that those items had been in the premises of a friend, with whom he then lived.  Perhaps, after he, Le Van Canh, had gone to jail his friend had moved them to those premises.

27.  Then, it was suggested that there were inconsistencies and contradictions in the evidence of the police officers as to whom it was who chose which exhibits were to be tested by which forensic examination.  In that context, the judge had failed to have regard to the fact that the paraphernalia for drug manufacturing and packaging found inside 43, Nai Wai had not been subjected to forensic examination for DNA and fingerprints.

28.  Finally, it was contended that the judge had erred in not having sufficient regard to what was contended the ‘gaps in the chain of evidence’ of the exhibits sent for forensic examination.

The credibility of the applicant

29.  It was contended that the reasons that the judge gave for disbelieving the applicant’s evidence were erroneous.  He erred in finding that the premises at 43, Nai Wai were in close proximity to one another.  In rejecting the applicant’s testimony that she had been arrested nearby to the football pitch, not outside 43, Nai Wai, the judge failed to appreciate that it was her testimony that having met the vendor of the dangerous drugs the actual transfer of the dangerous drugs occurred later at a different place, namely at the entrance to the playground, where he had left the dangerous drugs for her to collect.  It was only after four or five minutes had elapsed after the latter event that she was intercepted by police officers.  Furthermore, the judge was wrong to say that the applicant’s testimony was inconsistent: on the one hand that she said the vendor “asked her to go to the football pitch to meet” but on the other hand saying that he “was not at the playground at all”.

30.  Next, it was submitted that the judge erred in inferring that the failure of her counsel to cross-examine Sergeant 46343 about threats to arrest and charge her son for unlawfully trafficking in dangerous drugs was because that was a matter she invented in her testimony.  That issue was irrelevant since, even on the prosecution case, the applicant had made no admissions inside the premises.

31.  Then, it was submitted that the judge had erred in disbelieving the applicant’s testimony that the police had planted the medicine bag, bearing her name, into which the midazolam tablets were then placed, and the rental receipt inside the hut by speculating that, if they were minded to fabricate the case against her, they could have fabricated admissions in respect of the dangerous drugs or the premises themselves.  It was suggested that the evidence of PC 3204 supported the applicant’s testimony that the receipt had been found in her bag, not inside 43, Nai Wai.

32.  Next, it was submitted that the judge erred in rejecting the applicant’s evidence as to her consumption of 5 to 6 Midazolam tablets per day, without there being evidence to the contrary.

The post-record

33.  Finally, it was argued that the judge had erred in not excluding the post-recorded statement taken by PC 3204 from the applicant on the grounds that she had been misled by her own legal adviser or excluding it in the exercise of his residual discretion.  Furthermore, the judge had erred in not stating whether or not he placed any weight on the alleged admission, namely “These dangerous drugs are all mine.  I only use them for my own consumption”.

A CONSIDERATION OF THE SUBMISSIONS

34.  Clearly, the primary thrust of the grounds advanced on behalf of the applicant is that the judge erred in his determination of the credibility of the witnesses who had testified at trial.  In that situation the judge enjoyed the inestimable advantage over this court of having seen and heard the witnesses testify.  It is trite law that in such circumstances an appellate court approaches the matter with a reluctance to overturn primary findings of fact but, if justified, will do so.

35.  In stating that he found all the prosecution witnesses to be truthful and honest, save for Le Van Canh (PW2), the judge was clearly accepting the evidence of To Man Ying, who had arranged the leasing of the premises for the lessor at 43, Nai Wai in May 2009 and the subsequent monthly collection of rent.  It was his evidence that, although the lease was in the name of Le Man Canh, in the Chinese version of his name, the person he had dealt with throughout in granting the lease and then collecting rent on a monthly basis was the applicant.  Although a rent receipt stated that payment had been made by the tenant, in fact he had received it from the applicant.  By contrast, it had been the testimony of Le Man Canh that he had paid the initial deposit and rent.  Clearly, the judge was rejecting that evidence.  Le Man Canh went on to testify that he had never lived in the premises, explaining that he been arrested and sent to jail before he could do so.  At that time he had been living with a friend, at whose premises were his Hong Kong ‘Document of identity for Visa Purposes’ and the pair of trainers that had been in the premises at the time of the police entry on 2 March 2010.  In questions asked by the judge as to how those items came to be there Le Man Canh first gave speculative answers and then contended that he had no idea.  It was that evidence that the judge described as “evasive”.  In context, clearly he was entitled to make that finding.

The rental receipt

36.  In cross-examination, PC 3204 denied that the contents of the applicant’s handbag, which he said that he had searched earlier, were emptied onto a table inside the premises at 43, Nai Wai.  It was in that context, that he said that he was not sure whether there was a rental receipt for the applicant’s Lakeshore premises in the applicant’s handbag.  He explained that evidence on the basis that he had only taken a note of some, not all, of the contents of her handbag.  For example, he had noted the presence of the suspected cocaine and heroin, the 2 mobile telephones and five keys.  However, by contrast he testified that he was sure that a rental receipt in the name of the applicant had been found by PC 3830 in a drawer in the premises, together with a tenancy agreement and other rent receipts.  The suggested inconsistency in his evidence is illusory.

37.  Furthermore, it is to be noted that PC 3830 also testified that he had found two tenancy agreements and three rent receipts in a drawer inside the premises at 43, Nai Wai.  He denied that he or one of his colleagues had taken the rent receipts in the name of the applicant from her handbag and placed it into a drawer.

The absence of fingerprint evidence

38.  In his closing submissions to the judge, Mr Andrew Leung had suggested that, “it is very strange that no DNA or fingerprint evidence links the defendant to the property considering it is the prosecution case she was in there for hours.”  The judge addressed the absence of fingerprint evidence inside the house, on the gate or on the locks specifically:

“ …There could be a number of reasons why defendant’s fingerprints could not be found. The absence of defendant’s fingerprints in the hut or on the gate is neither here nor there. In fact, police did find fingerprints inside the hut. Just that they bear insufficient characteristics for purpose of identification.”

39.  The judge’s observation as to the discovery of fingerprint impressions, but with insufficient characteristics to permit identification, reflected the testimony of Sergeant 6840 of the Identification Bureau, to which he had averted earlier in his Reasons for Verdict.  Also, Sergeant 6840 had testified that he had tried but failed to discern and lift fingerprint impressions on the iron gate, including the padlocks, and the wooden door to the premises at 43, Nai Wai.

40.  The judge’s statement that the absence of fingerprint evidence was “neither here nor there” resonates with the observations made by Power VP in the judgment of this Court in HKSAR v Law Wing Hong (CACC 169/1998; unreported, 11 November 1998) :

“ … lack of fingerprint evidence is a neutral factor. Of course if fingerprint evidence is given and either implicates the accused or exonerates him by establishing that the fingerprints are those of some other person, then it can be evidence of very substantial importance. Where, however, there is no fingerprint evidence at all, it proves nothing either way.”

The place of arrest of the applicant

41.  The issue of where it was that the applicant was intercepted by the police, namely either as she emerged from the premises at 43, Nai Wai or at the football pitch in Nai Wai, was the subject of evidence from no less than four police officers and the applicant.  PC 3204, who arrested and cautioned the applicant as she emerged from the premises at 43, Nai Wai, and PC 3830 who conducted the search of the inside of the premises, finding the suspected dangerous drugs and the documentary exhibits, gave evidence at greater length than their two colleagues Sergeant 46343 and WPC 4247.  No doubt, that is why the judge in dealing with the evidence of the latter two witnesses said of them: “Their evidence was more or less the same as PW 5 (PC 3204) and 6 (PC 3830).”  In making that finding, the judge was acknowledging, as is the likelihood of witnesses present together at the same time in more or less the same place, that there were differences in what each had observed and then recalled.  However, the core of their evidence was the same: namely, that the applicant had been intercepted by PC 3204 at about 10:30 a.m. as she emerged from the doorway of the premises at 43, Nai Wai.  The applicant was not arrested by Sergeant 46343 and WPC 4247 in the vicinity of the football pitch and then brought to 43, Nai Wai where they met up with the other two police officers.  No doubt, that is why the judge found of the evidence of the police officers that their, “Evidence…supports each other in all material aspects.” [Italics added.]

42.  In his closing speech, Mr Andrew Leung had canvassed with the judge the issue of the improbability that PC 3830 had been able correctly to guess the combination of the second combination lock as he had the issue of why it was that forced entry was not made immediately, given that the police officers were armed with a search warrant and a crowbar.  Sergeant 46343 said that he had instructed PC 3830 to try different code numbers to open the combination locks before he instructed him to use the crowbar to prise open the lock on the iron grille because he did not want to damage the scene.  Those officers and PC 3204 all denied that the locks had been opened after they had been given a combination code to do so in a telephone call.  Although the judge did not refer to these matters specifically in his reasons for verdict it is implicit in his findings that the police officers were truthful and honest witnesses that he rejected the allegations made in cross-examination of those witnesses in this respect.  It is to be noted that the lock possessed ten numeric keys, five of which had to be depressed, in no particular sequence, to open the lock.

The exhibit chain

43.  The submissions made in respect of what are said to be ‘gaps’ in the exhibit chain are to be viewed in the context of the admitted facts.  There, the narcotic content of exhibits seized by the police and analysed by the Government Chemist was accepted.  The ‘gaps’ in the exhibit chain of which complaint is made is in respect of the evidence of DSPC 45568, who transported sealed bags of suspected drugs to and from the Government Chemist.  There is nothing in the point.  The exhibits had all been sealed in tamperproof exhibit bags and marked with unique numeric codes which were documented on receipt.  PC 3830 testified to that effect in respect of the 73 tablets of midazolam and 260 straws of suspected heroin found inside the premises at 43, Nai Wai, adding that the applicant and her lawyer had signed on those tamperproof bags.  Also, he testified that he had received the 54 cocaine pellets and 115 straws of suspected heroin, seized by PC 3204 from the applicant’s handbag by PC 3204, and placed them into bags.  After they had been weighed at the police station they were placed in tamperproof bags which were signed by the applicant and her lawyer.

The credibility of the applicant

44.  In rejecting the applicant’s evidence as to the place at which she was intercepted and arrested by the police the judge did not make a finding that the football pitch and the premises at 43, Nai Wai were in close proximity with one another.  What he did find was that the police had kept the premises at 43, Nai Wai under surveillance from 6 a.m. that morning.  She was first sighted by them emerging from those premises at 10:30 a.m.  It was in that context that the judge found that if she had received dangerous drugs from the vendor at about 10 a.m. in the vicinity of the football pitch the transaction would have been observed by the police.  Clearly, the judge’s crucial finding was his acceptance of the police evidence that the first time that she was seen at the premises that morning was at 10:30 a.m. when she left the premises, at which point they intercepted her.

45.  The judge’s description of the applicant’s evidence as to a meeting with the vendor at the handover of the dangerous drugs at the playground as “self-contradictory” is to be viewed in the context of her evidence of those events.  At first, she said that there had been telephone conversations between them, after she had first telephoned the vendor at about 9:30 a.m.  He asked her to walk to the Nai Wai playground.  Then, she said:

“ So I went there and saw Ah Fai (the vendor) and he sold me 54 pellets of coke to me.”

46.  Although the applicant testified of discussions with the vendor as to price and even as to discount in price, she did not testify of any payment being made to the vendor.  If she had in fact met the vendor, in the circumstances she described, why was no payment made? 

47.  Later, the applicant qualified her description of the circumstances of the sale, saying:

“ When Ah Fai gave it to me, he did not give it -- did not hand it to me in person, he wrapped it in a piece of paper and placed it at the vicinity of the entrance of the playground.”

She went to that place and picked it up.  Then, she sat on a bench at the entrance of the playground and counted the contents.  Only then was she intercepted by police officers.  In those circumstances, the judge was entitled to find that the applicant’s account was self-contradictory.

48.  The judge’s finding that the applicant had made up her evidence that whilst in the premises at 43, Nai Wai Sergeant 46343 had threatened her was made specifically on the basis that the matter had not been put in cross-examination by a counsel to that witness.  The threat to which the applicant testified in her evidence on the general issue, not in her evidence in the special issue, was that, if she did not admit that the dangerous drugs found on the premises were hers:

“ …then I will go to your home and catch all your children and charge your son with trafficking in dangerous drugs.”

49.  There is no dispute that the matter was not put specifically in cross-examination of Sergeant 46343.  Equally, there is no dispute that the judge’s description of the cross-examination by a counsel of Sergeant 46343 as rigorous was accurate.  Certainly, he had been accused of ‘framing’ the applicant in respect of the rental receipts and the medicine bag which bore her name, which the police were pretending to have found on the premises not in her handbag.  Although it was suggested to Sergeant 46343 that he had threatened the applicant and told her to admit possession of dangerous drugs the graphic threat, to which the applicant testified subsequently, was never suggested to him.

50.  When counsel for the respondent raised the matter, specifically in respect of the threat to her children, in his closing speech as, “allegations which were never the subject matter of challenge by learned counsel”, counsel for the applicant did not respond by informing the court that he had put the matter generally, namely that he had suggested that threats had been made, nor did he suggest that he had those instructions, albeit that he had not put them.  In those circumstances, having regard to the graphic nature of the threat to which the applicant testified, it is understandable that the judge drew the inference adverse to the applicant that he did.  In those circumstances, he was entitled to do so.

The applicant’s evidence of her consumption of midazolam tablets

51.  The judge noted that the applicant had testified that she had been prescribed 60 tablets of midazolam on 21 July 2009, which prescription she had exhausted by 9 August 2009 when the doctor prescribed 80 more tablets of the same medicine.  He noted that was a consumption of “an average of 3 tablets a day”.  The judge went on to say:

“ Again, doctor prescribed 110 tablets to defendant on 22 August 2009 and another batch of drugs to defendant on 5 October 2009. That means defendant consumed 110 tablets within 14 days, an average of 7 to 8 tablets a day. This is virtually impossible.” [Italics added.]

52.  The judge’s reference in his Reasons for Verdict to the date being 22 August 2009 is in error, as is clear from the applicant’s evidence.  The prescription of 110 tablets was made on 22 September 2009.

53.  The judge went on to note :

“ Defendant then changed her evidence and testified that doctor advised her that she could take five to six tablets a day if she could not sleep. Defendant is obviously lying.” [Italics added.]

54.  In cross-examination, the applicant had been asked, in the context of her evidence of the prescription to her of midazolam in July 2009 that she had been told by the prescribing doctor to take the medication whenever she had insomnia and that the dosage was one or two tablets at a time.  Then, in that context, in cross-examination of her about the frequency with which, on her evidence, prescriptions were renewed in the period up to 4 October 2009 the applicant said:

“ ... during that period … all along I could not go to sleep. The Doctor said one can take 5 to 6 tablets at one time, me, in one day.” [Italics added.]

55.  As Mr Andrew Leung has pointed out, there was evidence before the court, in the form of a report dated 12 October 2010 from Dr Lam Ming, a Consultant Psychiatrist at Castle Peak Hospital, of the normal daily therapeutic dose of midazolam and of the dosage of heavy abusers.  Dr Lam Ming said that the normal therapeutic oral dose was 10-30 mg per day.  Further, he said that the most common strength tablets available in Hong Kong were 15 mg tablets.  It is clear from the Government Chemist’s report that the tablets of midazolam in the possession of the applicant at her residence and those found inside the premises at 43, Nai Wai, which were the subject of the charges 3 and 2 respectively, were of that strength.  Importantly, Dr Lam Ming also said :

“ Some heavy abusers may take more than 10 tablets a day. As benzodiazepines, when used alone, have minimal direct respiratory depressant effects so it is rarely fatal even an overdose of 50-100 times the usual therapeutic dose.”

56.  Although the defence had adduced the evidence of Dr Lam Ming at the trial, and although reference was made to it in the closing speech of the applicant’s counsel in the context of the consumption of cocaine by heavy abusers of that drug, no reference was made to Dr Lam Ming’s evidence in respect of the number of tablets used by heavy abusers of midazolam.

57.  The cross-examination of the applicant in respect of the daily dosage at which she consumed midazolam was in respect of the period on and between July and October 2009.  However, she testified that the 170 tablets of midazolam found in her residence had also been prescribed for her by a doctor who had “originally prescribed 190 tablets”.  She was not asked and did not testify as to when that medication had been prescribed and when she had obtained it.  Immediately prior to the applicant’s evidence-in-chief, her counsel had produced a three-page letter on the letterhead of Dr Lee Chiu Tong, Frederick dated 24/12/10.  No objection was taken to its admission into evidence at the time and it was marked as an exhibit.  In that letter the applicant was referred to by name and reference was made to the apparent prescription of ‘Dormicum’ tablets on various dates.

58.  The midazolam tablets, the subject of charge 3, had been found openly displayed in a cabinet in and on a box bearing the brand name ‘Dormicum’, the name midazolam and a reference to the dosage as being 15 mg.  Related plastic bags bore the name of Dr Frederick CT Lee and Koon Leung Pharmacy respectively.  The name of the applicant appeared on the plastic bag bearing the name of Dr Frederick CT Lee only, whereas the name Lai Chek Hing appeared on the box and Chung Kin Leung on the other plastic bag.  There was no questioning at all of the applicant relevant to those matters.

59.  It is not clear on what basis the judge said that the consumption of 7 to 8 tablets of midazolam a day was “virtually impossible”.  He gave no explanation of how he reached that conclusion.  Certainly, such a finding was contrary to the specific evidence of Dr Lam Ming that a ‘heavy abuser’ could use more than 10 tablets per day and that an overdose of even 50-100 times the usual therapeutic dose is “rarely fatal”.  The importance of that error was that it was clearly directly linked to his determination of the applicant that she was “obviously lying”.

60.  Whilst it will be necessary to consider whether such a determination impacted on his approach to and consequent findings in respect of matters generally at issue in the case, it is clear that it had direct relevance to the issue at hand which was, on the applicant’s admission that she was possessed of 170 midazolam tablets at her residence: first, whether she possessed those tablets lawfully; secondly, if not whether she was unlawfully trafficking in those dangerous drugs.

61.  In respect of the issue of her lawful possession of the dangerous drugs the applicant had testified that they had been obtained on prescription from a doctor.  Dr Frederick CT Lee had not been called as a witness and no relevant related admissions had been made.  In an exchange between counsel for the applicant and the judge in the former’s closing speech he accepted that the letter from Dr Frederick CT Lee was hearsay evidence on which no weight could be placed.  He was correct to do so.  He did not seek to re-open his case.

62.  In the context of charge 2, namely the midazolam tablets found in the premises at 43 Nai Wai, and having found that those tablets were found in a medicine bag bearing the applicant’s name, the judge addressed the issue of whether or not the applicant had obtained the tablets of midazolam under a prescription, so that she was licensed to be possessed of them, and was therefore in lawful possession of the tablets, the judge said:

“ Evidence from defence suggests that defendant got midazolam from doctor at a price of HK 3.5 per tablet. If that is the case, defendant could have made a substantial profit by selling these tablets of my midazolam to other drug abusers. ”

Of course, the judge was referring to the applicant’s evidence in respect of the tablets midazolam found in her residence.

63.  Although the judge did not go so far as to say that he accepted the applicant’s evidence in that regard, he did proceed to consider the issue of whether or not she possessed them for the purposes of unlawful trafficking on the assumption that her evidence as to the circumstances in which she came into possession was true.  Certainly, he did not reject her evidence that she had obtained the midazolam tablets found in her residence from a doctor under a prescription.

64.  As is apparent from the passage cited above in the Reasons for Verdict, acting on the assumed basis that the applicant had been prescribed the midazolam the judge moved directly to considering the issue of whether or not the applicant possessed the midazolam tablets, the subject of charges 2 and 3, for the purpose of unlawfully trafficking.  Acting solely on the basis of the price differential between the price at which the applicant had said that she had obtained some midazolam tablets, namely $3.50, and the street price for illicit purchases of the tablets of $54 the judge drew as the “only inference” the conclusion that the applicant possessed the tablets the subject of both charges 2 and 3 for the purpose of trafficking.

65.  As was noted earlier, we are satisfied that the judge’s finding that the applicant was “obviously lying” in respect of the volume of her consumption, having regard to his finding that consumption of 7 to 8 tablets per day was “virtually impossible”, was fundamentally flawed.  Similarly, the fact by itself, in the context of the volume of the tablets he found the applicant possessed, that there was a price differential between the price at which the applicant had obtained midazolam tablets and the price of illicit purchases in the street of those tablets was an insufficient basis to draw the inference of possession for the purposes of unlawfully trafficking.  In the result, we are satisfied that the inferences that the judge drew to the contrary were flawed.

66.  Clearly, his conclusion that the applicant was unlawfully trafficking in the quantities of midazolam stipulated in charges 2 and 3 cannot be sustained.

67.  We turn next to consider the issue of the impact of the judge’s flawed finding that the applicant was “obviously lying” in her evidence as to her consumption of midazolam on his other determinations in respect of her credibility.  At the outset of his consideration of her evidence, the judge said that he found her to be “inherently incredible”.  Then, he set out a series of issues in the evidence where he rejected her testimony.  We are satisfied that there is a real danger that the judge’s finding that the applicant was “obviously lying” in relation to her evidence of her consumption of midazolam, albeit on another issue may have impacted on his determination that she possessed the cocaine and heroin, the subject of charge 1, for the purposes of unlawfully trafficking.  On any view, it was clearly relevant to a consideration of her credibility.

Post-record

68.  As noted earlier the judge found the post-record to have been made in a “proper manner” and that there was no allegation of “false, threat or inducement” before or during the taking of the post-record.  Noting that she had been represented and advised of her rights he determined that “she did sign on the notebook voluntarily”.  Finally, he said that there was nothing that warranted his excluding the notebook from evidence.

69.  However, earlier in his summary of the evidence of the applicant, the judge noted that she had said that she had answered, “No answer” because she had been advised not to answer any questions.  Importantly, he noted the applicant’s testimony that in writing out the declaration and signing the notebook :

“ she did not mean to confirm the whole content of the post recorded statement being true and correct.”

Obviously, the real issue was not one of voluntariness, but whether or not in doing what she did and said the applicant was adopting the record.  Clearly, on her evidence she was not.  The focus of the judge was misplaced.  He did not address the relevant issue.  In those circumstances, we are satisfied that the admission of the post-record into evidence was made in error.

70.  Given that there was oral testimony by PC 3204 of the oral admission made by the applicant on arrest and caution, there was evidence independent of the post-record in respect of the applicant’s admission in relation to the dangerous drugs found in her handbag.  There was no issue that 54 pellets of cocaine had been found in the applicant’s handbag.  The applicant accepted as much in testimony and said that she had admitted possession of it when arrested and caution.  However, the applicant took issue with the allegation that heroin had been found in her handbag.  It had not been found in her handbag, and she had not admitted otherwise.  In that context, it is to be noted that the first notebook entry of PC 3204 as to the circumstances of the arrest, caution and response of the applicant does not stipulate the nature of the dangerous drugs found in her handbag.  The allegation was generic, merely “dangerous drugs” and did not condescend to any description of them or how they were packaged.  As noted earlier, the applicant declined to sign that part of the police officer’s notebook, saying that she didn’t read Chinese and wished to wait for the arrival of her lawyer.

71.  Significantly, the first reference to the specific suspected nature of the dangerous drugs, namely cocaine and heroin, their quantity and packaging appears only in the notebook entry made at Tuen Mun police station.  It was only after she had received legal advice that the applicant responded in respect of the notebook entry in the way that she did.  As noted earlier, the real issue was whether or not the applicant was thereby adopting the record as accurate.  The judge was in error in not addressing that issue.

72.  Notwithstanding the fact that the judge had admitted the notebook into evidence, he made no specific reference to it in his findings.  On the other hand, in addressing the evidence in respect of charge 1, the judge moved to making findings only after he said specifically that he had considered “… all the evidence”.  Given that the notebook entry, if regarded as an acknowledgement by the applicant of its accuracy, was relevant to the issue of her possession of the heroin the subject of charge 1, we are satisfied that the judge’s finding , first in respect of her possession of heroin and, second that she possessed the heroin for unlawful trafficking is thereby undermined.

73.  The issue remaining is the applicant’s conviction in respect of unlawful trafficking in the cocaine the subject of charge 1.  However, as noted earlier, the judge approached the drawing of an irresistible inference that the applicant possessed the cocaine and the heroin, the subject of charge 1, on a consideration of their collective total value on retail sale, namely $31,800.  The value of the heroin, about $24,000, greatly exceeded that of the cocaine.  The judge did not give separate consideration to the drawing of inferences of the applicant’s possession of the cocaine for the purposes of unlawfully trafficking based on the value of the cocaine alone.  Similarly, the judge did not address specifically the issue of the applicant’s evidence that she possessed cocaine for her own consumption nor did he make reference to the evidence of Dr Lam Ming of consumption by abusers, in particular that recreational abusers usually use less than 1 gram per day, but that heavy abusers may use up to 30 grams in a day.

Proviso

74.  Although Ms Vinci Lam sought to argue that, notwithstanding a determination by this Court that the judge had erred in respect of his findings as to the credibility of the applicant in respect of consumption of midazolam and as to the admission into evidence of the post record, the court ought to apply the ‘proviso’, having regard to all the evidence we are not persuaded that is the case.

Conclusion

75.  For the reasons set out above, we are satisfied that the applicant’s convictions for unlawful trafficking in midazolam in charges 2 and 3 are unsafe.  Similarly, notwithstanding the applicant’s admitted possession of the cocaine the subject of charge 1, we are satisfied that the applicant’s conviction for unlawful trafficking in that cocaine is unsafe.  Accordingly, we quash the applicant’s convictions for unlawful trafficking on charges 1, 2 and 3 and the sentences of imprisonment imposed in consequence of those convictions.

76.  We will hear the parties as to whether or not it is appropriate for the court to exercise its power under Section 83A of the Criminal Procedure Ordinance, Cap. 221 to substitute convictions for the lesser offence of possession of the cocaine, the subject of charges 1 and 3, or whether the respondent seeks a re-trial on some or all of the charges.

[The court received the submissions of counsel.]

77.  The prosecution seeks a re-retrial of the appellant on all three charges in respect of some of the dangerous drugs in each case on charges of unlawful trafficking. We note that the appellant’s release date is 6 November 2012 and that she has served a sentence of over 28 months’ imprisonment, having been in custody since 2 March 2010.  In those circumstances, it is not appropriate that we order a retrial. However, pursuant to section 83A of the Criminal Procedure Ordinance it is appropriate and we do substitute convictions for the offence of unlawful possession of a dangerous drug, contrary to section 8(2) of the Dangerous Drugs Ordinance, Cap. 134, namely in respect of 8.84 grams of a solid containing 6.51 grams of cocaine in charge 1 and in respect of 0.69 gram of the solid containing 0.48 gram of cocaine in charge 3. 

78.  Although the appellant had been convicted on no less than seven occasions for various sentences of dishonesty and possession of false documents, for which she had been sentenced to periods of imprisonment she has no previous convictions in respect of dangerous drugs.  Nevertheless, at the time of the offences she was a self-confessed drug addict.

79.  The retail price of the almost 7 grams of cocaine of which she was possessed was over $6,300.  That was a significant amount of money to the appellant who had a limited income, which was provided by a combination gifts from her boyfriend and from an office of the United Nations.  On her own evidence at trial after rent had been paid directly to the landlord on her behalf she had about $16,000 per month with which to provide for herself and four children.  In those circumstances, we are satisfied that there was a ‘latent risk’ that she would distribute some of the cocaine, the subject of the charge 1, to others. 

Starting point

80.  The appropriate starting point for charge 1 is 12 months’ imprisonment, which is to be enhanced by six months’ imprisonment to reflect the ‘latent risk’ of distribution to others.  The appropriate starting point for charge 2 is three months’ imprisonment.  

Discount

81.  Although the appellant stood trial and contested the charges of unlawful trafficking in the various quantities of dangerous drugs she admitted that she was possessed of those cocaine the subject of charges 1 and 3.  Accordingly, she is entitled to a discount of one third from that taken for the starting point. 

Sentence

82.  In the result, the sentences of an imprisonment imposed on the appellant are 12 months’ imprisonment for charge 1 and two months’ imprisonment for charge 3. The sentences are to be served concurrently.  Given that the appellant has already served considerably more than the sentence which is now imposed upon her she is to be released forthwith.