HKSAR v. MENDIZABAL JIMMY O

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JUDGMENT

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Chan, CJHC (giving the judgment of the Court):

1. The applicant pleaded guilty to one count of possession of a certain quantity of cannabis resin and was sentenced to 3 months imprisonment. He was also convicted after trial before Deputy Judge Jackson and a jury in the High Court of trafficking in a dangerous drug. The quantity of drug involved was 333.32 grammes of a crystalline solid containing 189.12 grammes of methamphetamine hydrochloride which is commonly known as "ice". He was sentenced to 10 years imprisonment. He now applies for leave to appeal against conviction of the more serious charge.

2. The prosecution's case is quite straight-forward and hardly disputed. At 5:25 p.m. on 15th December 1996, the applicant was intercepted by a team of police officers from the Special Duties Squad of the Kowloon City Police District as he was coming out of his flat on the 13th Floor, Sze Bo Building, 63 Hennessy Road, Wanchai, Hong Kong. He was then taken back into his flat by the police officers. Upon a body search, he was found to have in the pocket of his jacket the cannabis resin, the subject matter of the first charge.

3. A thorough search was conducted inside the flat. The police found 2 resealable plastic bags containing some of the drug, another 13 smaller resealable plastic bags containing other quantities of the same drug. Various other items connected with the drug and/or containing various quantities of ice or cannabis resin were also found.

4. Upon arrest, the applicant did not say anything. In an interview at the police station, he admitted that both the cannabis and drug were his but he had them for his own consumption. He said that he bought the "ice" from a friend called Bata. It was this friend who rang him up at home and asked if he wanted to buy the drug. The drug in question was subsequently delivered to him by Bata. It cost him $4,000 after some bargaining. In his statement he also said he would consume less than half a gramme every two days. Some of the drug found in his flat, according to him, was to be discarded because of its poor quality.

5. At the trial, the applicant gave evidence confirming what he said in his statement and elaborating on it. He also said that he suspected his supplier Bata might have set him up by tipping the police after having sold the drug to him. He suspected that Bata did that because he had evicted Bata's girlfriend who had occupied a bed space in his flat.

6. There are two grounds of appeal before us. The first contained a complaint of misdirection by the trial judge in a paragraph at page 16 of the Bundle:

"If indeed he was suspicious, as he told you, members of the jury, and if indeed he was set up in that the man, Bata, sold the 'Ice' to him at a totally low price intending all the time to tip off the police, that might provide a reason why the defendant was able to buy the drug so cheaply. But, members of the jury, that is speculation, and no more than that, and as I've said to you already, you must decide this case not on speculation, but on the evidence that's before you, and not on anything else."

7. It was submitted on behalf of the applicant that such direction was unfair and prejudicial to him in that effectively the learned judge was telling the jury to ignore the applicant's evidence in court. It was submitted that it was the applicant's belief that he was set up and that this belief was clearly evidence which the jury were entitled to consider. The trial judge was wrong to direct the jury that this piece of evidence was speculation when what the applicant said was an explanation as to why the police were there and why he was apprehended.

8. We do not think this ground can be sustained. The issue before the jury was whether the prosecution had proved beyond reasonable doubt that the applicant was trafficking in the drug. It is not disputed that he bought the drug from Bata. The jury were not concerned with whether there was any set up, whether there was any personal grudge between the applicant and Bata and whether Bata had tipped off the police. As a matter of fact, the police were there and they must have been acting on information. But that was not the issue before the jury. All these, in our view, were totally irrelevant and were indeed speculation. As was pointed out during the course of submission, if the applicant had really suspected that it was a set up, he too was speculating and this should not be considered at all. The judge had in fact said in his summing up that even if the jury did not accept the applicant's evidence, the jury should still ask themselves whether they were satisfied that the prosecution had proved the case against the applicant. What the learned judge said in the passage in question was nothing more than saying that a set up was only what the applicant alleged, or believed to put it at the highest, and not supported by any evidence. In any event, this was irrelevant to the issue before the jury.

9. The trial judge had put the defence clearly and comprehensively to the jury. In any event, he was entitled to comment on the evidence of the applicant. He had warned the jury that they need not accept his view if they did not agree with it. This appears on pages 1 and 2 of his summing up. The first ground of appeal fails.

10. There is a second ground of appeal. It is that the trial judge had misdirected the jury when he said towards the end of the summing up on page 20:

"Members of the jury, the last thing which I wish to say to you is to ask you a question which your verdict will answer. Is the inference that the Defendant possessed the 'ice' particularised in count two on the indictment for the purposes of trafficking a compelling one, and the only reasonable inference that can be drawn from the facts which you find proved? If so, members of the jury, and if you draw that inference you will find the Defendant guilty of trafficking. If not, you will find him guilty of the alternative offence of simple possession."

11. Counsel submitted that the judge had failed to remind the jury that the burden was on the prosecution to prove beyond reasonable doubt the applicant's guilt. He argued that this was particularly important because that was almost the last thing the trial judge said to the jury. The judge had, counsel submitted, omitted to remind the jury that the applicant had no burden to prove anything and was wrong by directing the jury in effect that where actual possession of the drug was not in dispute the applicant had a burden of proving that he was not trafficking in it. He submitted that the passage in question had given rise to that impression to the jury.

12. We do not think that there is anything in this ground either. The judge had already directed the jury on the burden of proof and the standard of proof and that the applicant was not required to prove anything. The trial judge did this several times during his course of the summing up. To quote a few examples, this appears on pages 2 to 3, page 9, pages 10 and 11. He had quite fairly pointed out to the jury that there was no direct evidence of trafficking and that it was a matter of inference for the jury. He had also in several places directed the jury that it was for them to decide on all the circumstances of the case whether the only reasonable and compelling inference was that the applicant had the drug for the purpose of trafficking. That can be seen on pages 4 to 5, page 6 and page 8 of the summing up. We think that it does not matter whether the direction was at the beginning or the middle of the summing up or the last thing he said to the jury. The whole summing up has to be looked at. It is important to see whether at the end of the summing up, the jury are left in no doubt what they are asked to do in this case, whether they could draw the only reasonable and compelling inference from all the evidence before them that the applicant had possession of the drug for the purpose of trafficking. That, in our view, had been made amply clear to the jury.

13. We see no merits in this application. We refuse leave and dismiss the application.