HKSAR v. KWONG YU PONG

CACC 9/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 2004

(ON APPEAL FROM DCCC NO. 1025 OF 2003)

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Dates of Hearing : 2 September 2004

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J U D G M E N T

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

The charges

1. The applicant pleaded not guilty in the District Court before Deputy Judge E Lin on two charges of trafficking in dangerous drugs.  These were that:

(1)              on 22 June 2003 in Central, he trafficked in 8.94 grammes of cocaine and 5.65 grammes of MDMA (Ecstasy), the latter in the form of 47 tablets; and

(2)              that on the same day he trafficked in 12.78 grammes of cocaine which was the quantity found at his home in Sai Kung. 

2. He was convicted of trafficking in respect of the first charge.  On the second charge he was acquitted of trafficking but was convicted of possession of those drugs.  He was sentenced to a total term for the two offences of five years’ imprisonment.  This is his application for leave to appeal out of time against conviction in respect of the first charge.

Time

3. We have read the reasons for the lateness of the application and they suffice for us to extend time for the filing of the application, and time is accordingly extended.

The facts

4. There was much common ground as to the facts and the sole issue at trial.  Shortly before 1a.m. on 22 June 2003, two patrolling police officers saw the applicant at the junction of Ezra’s Lane and Cochrane Street in Central and they intercepted him and conducted a body search, and found on him a plastic bag containing forty-seven tablets of dangerous drugs and a bag with twelve small resealable plastic bags of cocaine inside his trousers.  He was arrested for the offence of possession, and said under caution that the drugs were for his own consumption.

5. He was interviewed a couple of hours later and he said that he purchased the drugs for his own consumption from an expatriate called David who, he said, he had met three months previously at a discotheque at Lyndhurst Terrace, and on that occasion and subsequently had purchased drugs from him. 

6. At about 5.50a.m. on the same day, officers went with him to his residence in Sai Kung for a house search and there they found a plastic envelope which contained a substance which transpired to be cocaine.  He was arrested for possession of those drugs, and he said that they too were for his own consumption.  And upon a later analysis, the various items seized from him were confirmed by the Government Chemist to contain the drugs reflected in the charges.

Interviews

7. When he was arrested shortly before 1a.m. he said to the police that the drugs were for his own consumption.  An hour or two later he was interviewed, and he said that he had paid $1,000 for each packet of cocaine and that each tablet cost $80 so that the total value of the drugs he was carrying was $15,760.  The drugs had been sold to him by the man called David, whose contact number he did not have since David telephoned him about once a month, and not the other way round.  Nonetheless, he gave some description of the man to the interviewer.  The applicant said in this interview that he was a photographer earning $15,000 per month and that the quantity with which he had been found would last about a month.  He would normally consume two grammes of cocaine in the course of a day and five or six tablets of ecstasy a day and then he would stop taking one or either of these drugs for a day or two.  He said that David had supplied him with the drugs with which he was found about half an hour before he was arrested and that he was at that time on his way to a disco.  He said he bought these drugs in one go because it was cheaper that way.

8. When he was questioned about the drugs found at his residence he told the police that he bought twenty-eight grammes of cocaine from David for $20,000 and that the quantity found at his home was the remnant of this purchase.  He had bought a large quantity, he said, because he was not in a position to find David just whenever he wanted.  He would spend less than $10,000 a month on cocaine.

The expert evidence

9. A senior inspector of police, whose evidence was not challenged, spoke about the street value of the tablets.  Those were worth in the region of $3,700 whereas cocaine was worth about $31,000, although this was not a price based on bulk purchases.  He thought that a user of MDMA would at most take five tablets at one sitting. 

10. Then there was the evidence of a psychiatrist, Dr Chen, who specialized in substance abuse and he said that the usual dose for a cocaine addict was one gramme per day; but he accepted that dosage was a matter that varied according to the tolerance level of the individual, so that whilst the typical user of cocaine would use one gramme on each occasion, an habitual user might consume one to two grammes.  The cocaine which was the subject of the two charges would therefore last, assuming one to two grammes per day, for ten to twenty-one days in the case of an habitual user.  As for the MDMA, the tablets in question contained 120 milligrammes each, and since the typical user took one to two tablets a dose, the quantity found would predict something between twenty-four to forty-seven occasions of use.  He was then asked this question by the court:

“COURT: …Is it common for a substance abuser to be taking both MDMA and cocaine on the same, say on the same night or even on the same occasion?

A.    … it’s less common because both are very stimulating drugs.  Usually one would take a stimulating drugs with a more sedative drugs.” (Appeal bundle p100).

11. He was brought back to this issue by the court in the course of cross-examination:

“COURT: While you are here, Doctor, can I just come in with this question, in your experience, in your clinical experience, have you ever come across any patient who abuse both substances at the same time?

A.    Yes.

COURT: You have?

A.    Many.

COURT: Both at the same time?

A.    Not these two but many other.

COURT: No, I’m talking about both MDMA also cocaine at the same time.

A.    MDMA, no.

COURT: No.

A.    No.” (Appeal bundle p104).

12. Counsel for the applicant pursued that question (page 105):

“Q.  But can you say for sure it is not possible to take both drugs at the same time?

COURT: No, he says it’s rare.  He never said it was impossible.

A.       No.  I can’t say that.

Q.       So I can take – one day I take cocaine, the next day I take MDMA.

A.       Well, we are talking about taking it at the same time, yes.  But of course you’re right, you can take one cocaine one day and then MDMA another day.

Q.       How do you mean when you say at the same time means, I take cocaine and I immediately thereafter take MDMA.  Those are what you mean by taking it at the same time.

A.       Yes.

Q.       Same occasion.

A.       Same location.

COURT: In the course of one evening maybe.

A.       Yes.

COURT: Yes.

Q.       So, if I say I take cocaine two hours ago and three hours later I take MDMA.

A.       Yes, could be.

Q.       It’s possible, right?

A.       Possible.

Q.       But you don’t take the two drugs at the same time, one after the other?

A.    Doesn’t make sense.”

The defence

13. The applicant gave evidence at trial.  His case was much along the lines of the account which he had given to the police.  He was at the time aged 30 years and is married with children.  He worked, he said, as a freelance photographer and he earned around $15,000 to $20,000 per month.  His father ran a sail-making business and he helped his father out and was paid about $5,000 per month for that.  The premises in Sai Kung belonged to his father, so he paid no rent for his accommodation.  He had been addicted, he said, to cocaine for about a year and had been using MDMA since the start of 2003.  He took one to two grammes of cocaine a day, and as for MDMA he would take that once in several days consuming five to six tablets during one day.  His average monthly consumption of MDMA could be as much, he said, as over thirty tablets.  He had, prior to his arrest, purchased drugs from David on two or three occasions and David called him about once a month.  In mid-April he had bought an ounce of cocaine for $20,000 and had still some left over in May so that when David called him in May he bought none.  But by June he had twelve grammes left, and when David called him on 20 June he placed an order for twelve grammes of cocaine as well as for fifty MDMA tablets because he feared that his stock would run out before the next call.  He paid a total of just under $16,000.  He was arrested just after he made the June purchase and he said he took cocaine at home but he took MDMA at discos or at friends’.  He bought in bulk because it was cheaper to do so.

The findings

14. The trial judge’s assessment of the evidence and his findings of fact ran as follows:

“In assessing the evidence, the court noted a general vagueness in his account of his income and his expenses, and the feebleness of the explanation of how he came to purchase dangerous drugs when there has already stock at home.

21.  As for MDMA, he admitted he would only consume it in the company of friends or in a disco.  It was difficult to imagine why he would make a trip specifically from Sai Kung to Central in order to purchase MDMA.  I found also his account of how he consumed simultaneously cocaine and MDMA inherently unlikely in the light of the evidence of the experts.  I found his evidence about David and the lack of details about this character a convenient excuse rather than the truth.

22.  Having considered his evidence as a whole and taking into account my observation of the defendant whilst he was giving evidence, of his demeanour in answering questions and the evasive way in which he gave account of his dealings with David, I concluded that the defendant was not a reliable witness and I could not place any weight on either his own explanation or the evidence in relation to his alleged purpose of possession.

23.  I found that his account of daily intake of both drugs was probably exaggerated in order to lend credence to his explanation of having such a large quantity.  I rejected his evidence in so far as it was inconsistent with the prosecution’s case.

24.  Nonetheless, the prosecution still had to prove the case beyond all reasonable doubt.  In respect of the lst count for the trafficking, I took into account all the circumstances of the defendant’s arrest and the place and the time and the fact that the dangerous drugs involved 47 tablets and 12 separate packets.  All of them, when put together, led me to the inevitable inference that they were for purposes other than simply self-consumption.  I found in fact they were for the purpose of trafficking, as defined by the letters of the law.

25.  In respect of the 2^nd count, the dangerous drug was in one packet and was found in the defendant’s home.  There was no other evidence which assisted the inference that they were only for the purpose of passing on to someone else; albeit it was a relatively large quantity.  In the circumstances, I therefore had to give him the benefit of doubt and acquitted the defendant of the charge of trafficking, but convicted him of the charge of possession.” (Appeal bundle pp 65-66).

The appeal

15. The first complaint is as to the judge’s comment that he found unlikely the applicant’s testimony that he consumed simultaneously cocaine and MDMA.  The word “simultaneously” gives rise to the first problem in that it was never the applicant’s evidence that he consumed these drugs simultaneously, and this is relevant because Dr Chen’s testimony was that in his experience addicts did not consume the two drugs on the same occasion.  The applicant had said in terms in his evidence that he did not take both drugs at the same time.  Prosecuting counsel put a question in cross-examination to the applicant on the basis that the doctor had not come across the two drugs linked together in such a way as the applicant had linked them.  That was an inaccurate way of representing the doctor’s evidence.  The strange aspect of the judge’s error, as on its face it is, is that in the course of cross-examination it was put to the applicant that he had said that he would consume five to six tablets of Ecstasy and two grammes of cocaine all during one day and there was then the following exchange at page 124 of the appeal bundle:

“MR CHEUNG: I don’t think that was said.

COURT: Well he said he could consume 5 or 6 tablets of Ecstasy within 24 hours, I think I clarified that point.  He didn’t say that he could do it as well as the – together with the cocaine. …”

16. If the judge meant what he wrote in a literal sense, then there is an error and it is material in that the finding against the applicant in this regard goes to the central question whether he was a consumer or a trafficker.  If, on the other hand, by “simultaneous” the judge meant that it was inherently unlikely for an addict to be taking cocaine over a lengthy period of time during which lengthy period he also consumed MDMA, albeit not together with cocaine or one immediately after the other, then there was no evidence to support that view.  Ms Shine in her oral submissions today has suggested that the judge’s comments were a reference to quantity allegedly taken by the applicant on his own evidence.  Yet that is not what the judge said and where the issue of simultaneous consumption has been an issue in the course of the trial, one might have expected the judge, if Ms Shine is correct, more accurately to state what he meant.  Given what is at stake, we are not prepared to make the assumption to which Ms Shine invites us. 

17. In so far as the judge said that the evidence about the man David and the lack of details about him was unsatisfactory, the suggestion here is that that is unfair because it is common knowledge that the peddlers of drugs make it difficult for buyers to identify and trace them.  The judge’s assessment in this regard should also be examined against the background that shortly after his arrest, the applicant gave to the police the name ‘David’, told them the name of the disco where they had met, where it was that he had bought the latest batch of drugs from him, and gave the description of the man and of his clothing, a description that was not pursued by the interviewer.  Nor were questions about David pursued to any real effect in cross-examination save that the applicant was unable to give a contact number which in itself was not an entirely surprising fact.

18. Then the judge said that it was difficult to imagine why the applicant would make a special trip to Central to buy MDMA.  This too is a little odd in that the applicant was not going to Central merely to buy MDMA but more particularly Central is the very area of Hong Kong perhaps best known for obtaining the type of drug with which this aspect of the case is concerned.

Conclusion

19. The testimony against the applicant was such as inevitably would lead to a strong suspicion indeed that he was trafficking.  However given the areas of concern about the reasoning used by this judge upon which we have touched in this judgment, we agree that this appeal should be allowed.  We will therefore grant the applicant leave to appeal against conviction, and treating the hearing of the application as the appeal, we will allow the appeal and set aside the conviction in respect of Charge 1.  We will hear counsel on the question of retrial.

[Retrial ordered on Charge 1].