HKSAR v. OWUSU DANIEL

CACC 120/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 120 OF 2016

(ON APPEAL FROM DCCC NO. 615 OF 2015)

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J U D G M E N T

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1. The applicant, a Ghanaian national, seeks leave to appeal out of time against his conviction on 17 March 2016 after trial by Judge G. Lam of one count of possession of dangerous drugs [1] on 5 March 2015, namely 2.46 grammes of methamphetamine hydrochloride (“Ice”) and 1.61 grammes of cocaine (Charge 1), contrary to section 8 of the Dangerous Drugs Ordinance (“the Ordinance”), Cap. 134, and one count of trafficking unlawfully on 5 March 2015 in a dangerous drug, namely 4.05 grammes of cocaine (Charge 2), contrary to section 4(1)(a) and (3) of the Ordinance. He was sentenced to a total of 39 months’ imprisonment for both charges on 1 April 2016. Also, the applicant seeks leave to appeal out of time against the sentence of 33 months’ imprisonment imposed in respect of Charge 2.

The prosecution case

2. At about 12:20 a.m. on 5 March 2015, two police officers observed the applicant standing on a concrete block in an alleyway at 21-23, Luard Road, Wanchai.  He was reaching with his hand onto a steel beam, which was part of a construction site structure next to the building at 21-23, Luard Road.  After DPC 3376 walked forward and revealed his identity, the applicant threw a plastic bag onto the ground.  It was found to contain Ice.  A search of the top of the steel beam revealed two more plastic bags.  One of the plastic bags contained four re-sealable plastic bags of Ice, in quantities very similar to the plastic bag that the applicant had thrown onto the ground.  The other bag contained eight re-sealable plastic bags of cocaine.  On examination and analysis, the three plastic bags were found to contain the dangerous drugs the subject of Charge 1.  The applicant was arrested for trafficking in dangerous drugs and, having been cautioned, remained silent.  The officer used English to administer words of arrest and caution.

3. A search of the applicant’s home in To Kwa Wan revealed the presence of a plastic bag which, on analysis and examination, was found to contain the 4.05 grammes of cocaine, the subject of Charge 2.  Also found in that search were two electronic scales and a large number of empty transparent re-sealable plastic bags, 102 in all.  Further, a considerable quantity of cash in different currencies was found on the premises: HK$72,000, US$200 and €510.

4. In a video recorded interview, the applicant said that he had been given the cocaine found at his home.  It was for his personal use.[2]  He said that the HK$72,000 belonged to him and his Indonesian domestic helper girlfriend. They had acquired it over the nine years of their partnership.  He said that, although as an asylum seeker who was not permitted to work in Hong Kong, some of the monies had come from his gambling winnings on horseracing.

The defence case

5. The applicant and his girlfriend gave evidence at trial.  In respect of the allegation particularised in Charge 1, the applicant said that he was at the alleyway to look for what he described as ‘men spray’.  He explained that the spray addressed problems of erectile penile dysfunction.  Earlier, he left it on the steel beam.  He had no knowledge of the two plastic bags found by the police officers on the steel beam which contained dangerous drugs.  He denied having thrown a plastic bag onto the ground. 

6. The applicant admitted that he was in possession of the cocaine found in his home, but denied the allegation that he unlawfully trafficked in that cocaine.  It had been given to him by a friend.  On two prior occasions he had consumed some of the cocaine.  The electronic scales and empty re-sealable plastic bags had been left behind by someone, who had hidden them in the ceiling panels of his home.  He had retrieved them.  The applicant’s girlfriend testified that she used the store of plastic bags to hold the Indonesian sauces she took with her when she ate away from her employer’s home.

Reasons for verdict

Charge 1

7. The judge determined that he was unable to conclude that the only reasonable inference to be drawn was that the applicant had possessed the dangerous drugs the subject of Charge 1 for the purpose of unlawful trafficking.  On the other hand, he was satisfied that the applicant was in possession of those dangerous drugs.  Accordingly, the judge convicted the applicant of unlawful possession of those dangerous drugs.

Charge 2

8. The judge said that he did not accept the applicant’s explanations for his admitted possession of the dangerous drugs, and other items, found in his home.  He said that he drew the irresistible inference that the applicant possessed the cocaine found in his home, together with the items which were of use in packaging, for the purpose of unlawful trafficking in that cocaine.

Mitigation

9. In mitigation, it was submitted that the applicant was not a drug addict, but it was contended he did consume some of the drugs the remainder of which were the subject of Charge 2. The judge was invited to note that that the applicant had clear criminal record.  The Drug Addiction Treatment Centre Suitability Report, which the judge called for, indicated that the applicant was not drug dependent. 

Reasons for sentence

Charge 1

10. In his reasons for sentence, the judge stipulated a starting point for sentence in respect of Charge 1 of 15 months’ imprisonment.  Having acknowledged that the ‘latent risk’ of the applicant unlawfully trafficking in some of the dangerous drugs to others was “moderately low”, the judge said that he enhanced that starting point for sentence by 2 months’ imprisonment.  Further, to reflect the fact that the applicant had committed the offence whilst he was permitted to be at liberty in Hong Kong as a torture claimant holding a Form 8 Recognisance the judge enhanced sentence by one month’s imprisonment.  Accordingly, the total resulting sentence was 18 months’ imprisonment. 

Charge 2

11. For Charge 2, the judge stipulated the starting point for sentence of 3 years’ imprisonment.  To reflect the judge’s acceptance that some of the dangerous drugs were for self-consumption, the judge reduced the starting point taken for sentence by 4 months’ imprisonment.  For the reasons that he gave in respect of Charge 1, the judge enhanced the resulting sentence by a further 1 month’s imprisonment to reflect the fact that the offence was committed whilst the applicant was at liberty in Hong Kong as a Form 8 holder. Accordingly, the judge sentenced the applicant to 33 months’ imprisonment in respect of Charge 2.

Totality

12. Having regard to the principle of totality, the judge ordered that 6 months of the sentence of imprisonment imposed in respect of Charge 1 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 2.  Accordingly, the total sentence imposed on the applicant was 39 months’ imprisonment.

Grounds of appeal against conviction and sentence

Out of time

13. In an affirmation dated 5 May 2016, attached to Form XI which the applicant filed with the Court on 6 May 2016, the applicant sought to explain why his application was out of time.  He said that that was because his mind ‘was not settle (d) yet’ and that he was ‘not familiar with some of the Hong Kong laws’.

Conviction

14. The applicant submitted that he should have been charged with unlawful possession of the dangerous drug, rather than the two charges of unlawful trafficking in those dangerous drugs.  He contended that there was no evidence of him selling the dangerous drugs the subject of Charge 2.  Further, he invited the Court to note that the quantity of cocaine the subject of that charge was “very small”.

15. In a letter to the Court filed on 30 August 2016, the applicant submitted that it was unfair that a urine test had not been taken until 13 months after the offences.  By the time the test was taken there was no trace of dangerous drugs in his body.  Had it been ordered at the time of his arrest he would have tested positive for dangerous drugs.  Finally, he submitted that the sentence of 33 months’ imprisonment imposed in respect of Charge 2 for trafficking was excessive, having regard to the sentence of 6 years’ imprisonment imposed on a fellow inmate for unlawfully trafficking in 30.3 grammes of cocaine.[3]

Respondent’s submissions

16. In his written submissions Mr Matthew Leung, on behalf of the respondent, submitted that the applicant had advanced no valid reasons for filing his applications out of time.  Sensibly, in her oral submissions Mr Parwani resiled from that position.

Conviction

Charge 2

17. In his written submissions, joined by Ms Parwani in her oral submissions, Mr Leung submitted that the judge was entitled to reject the applicant’s testimony, in particular that he had been given the dangerous drugs the subject of Charge 2.  The dangerous drugs were valuable and drug dealers do not give away valuable quantities of dangerous drugs.  Ms Parwani reminded the Court that it was an admitted fact that the retail street value of the dangerous drugs was $10,136.[4] The judge was entitled to draw the irresistible inference that the applicant possessed the cocaine for the purposes of unlawful trafficking.

Sentence

18. In his written submissions, joined by Ms Parwani in her oral submissions, Mr Leung invited the Court to note that the starting point taken for sentence stipulated by the judge of 3 years’ imprisonment adopted was already lower than a starting point calculated on a purely arithmetic basis for 4.05 grammes of cocaine, namely 3.2 years’ imprisonment, or 3 years and 2½ months’ imprisonment as Ms Parwani put it.

19. Ms Parwani submitted that the discount of 4 months’ imprisonment that the judge afforded the applicant to reflect the element of self-consumption of the dangerous drugs the subject of Charge 2 was generous.  On the other hand, she said that the enhancement of one month’s imprisonment to reflect the fact that the offence was committed in the aggravated circumstances of the applicant being a Form 8 Recognisance holder was within the judge’s discretion.  Indeed it could have been higher.

A consideration of the submissions

Out of time

20. It is to be noted that, the applicant having been sentenced more than seven days after he was convicted, the provisions of section 83Q(2) of the Criminal Procedure Ordinance, Cap. 221 apply.  Accordingly, the period of 28 days, within which the applicant was required to give notice of his appeal against conviction, runs from 1 April 2016.  It follows that his application was less than a week out of time. Ms Parwani was realistic and abandoning opposition to the application being made on the basis that it was out of time.  If there were any merits in the application, the Court would not shut it out for that default.

Conviction

21. The evidence on which the judge relied in convicting the applicant of Charge 2 was compelling.  The 4.05 grammes of cocaine was a substantial quantity of cocaine.  Furthermore, it was found together with two electronic scales and a number of re-sealable plastic bag, which the judge was entitled to determine was “the packaging paraphernalia and the purpose of drug trafficking”.  Although in his reasons for verdict the judge addressed the applicant’s claim, apparently made in his evidence, that of the Euros found in his possession, €150 had been given to him by an Indian from the Netherlands, surprisingly he did not address the undisputed evidence that the applicant accepted that HK$72,000 had been found at his home or the explanation that he gave us to its provenance.  In the course of the hearing, the applicant informed the Court that his girlfriend had given evidence that the monies were the aggregate of her savings from her employment as a domestic helper.  He said that she had trusted him to be custodian of those monies.  There are no reasonably arguable grounds of appeal against conviction advanced by the applicant.

Sentence

22. As Mr Leung pointed out in his written submissions, an arithmetic calculation of sentence for unlawfully trafficking in 4.05 grammes of cocaine produces a sentence of 3.2 years’ imprisonment.  As this Court has said on previous occasions [5], it affords greater transparency if a judge identifies sentence on the basis of an arithmetic calculation and then gives reasons why the ultimate starting point taken for sentence is greater or less than the arithmetic calculation of sentence.  The judge did not identify the sentence based on an arithmetic calculation and therefore gave no reason for taking a lesser starting point for sentence.  Although the judge acknowledged the mitigation advanced on behalf of the applicant that he had a clear criminal record in Hong Kong and that he had been in Hong Kong since 2006, lodging an asylum claim in 2007, the judge made no reference to it in determining the starting point to be taken for sentence.

Self-consumption

23. The judge noted that it was submitted on behalf of the applicant that a portion of the dangerous drugs was for self-consumption.  Of that, he said “Apart from his bare assertion, there is no evidence to suggest that the defendant is a drug user.”  Then, the judge noted that the Drug Addiction Treatment Centre Report that he had called for confirmed that the applicant was not drug dependent.[6] However, it is also to be noted that the applicant had told the author of the report that “…he had resorted to cocaine abuse altogether on two occasions only”.  Also, that the last occasion he had abused cocaine was “… in early March 2015.”  Furthermore, the applicant had said that he “…did not consider himself as a regular drug abuser nor did he feel physically addicted to the drug in question.” [7]  [Italics added.]

24. Notwithstanding that information, the judge said:

“ For the purposes of sentencing and having considered the nature of cocaine, I, however, accept that the possibility of self-consumption exists.”

25. In the result, the judge said that he reduced the sentence to be imposed on the applicant “to reflect the discounts for consumption” to 32 months’ imprisonment.  That was a discount of 4 months’ imprisonment from a starting point of 36 months’ imprisonment, namely 11.11%.  In doing so, the judge [8] referred to the judgment of this Court in HKSAR v Chow Chun Sang [9], in which Yeung VP said:

“ We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the cCourt should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

26. Also, without doing more than merely providing the citations of the cases, the judge referred to the judgments of this Court in HKSAR v Wong Suet Hau & Another [10]and HKSAR v Cheuk Kin Man [11].

27. In the judgment of the Court in HKSAR v Tam Ling Yuen [12] it was noted that the trial judge in HKSAR v Chow Chun Sang had accepted that more than half of the 7.22 grammes of Ice in which the defendant trafficked unlawfully was for his own consumption.  Of the phrase, used by Yeung VP “all or part of the drugs” are intended for self-consumption, this Court said [13]:

“  …the other judgments to which Yeung VP adverted concerned cases in which it was accepted that all or two-thirds of the dangerous drugs were for self-consumption by the trafficker.  We have no hesitation whatsoever in rejecting Mr Fenton’s suggestion that the requirement clearly articulated in the reserved judgment of this Court in Wong Suet Hau that a discount of sentence was to be afforded only where the Court accepted that a “significant proportion” of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption had been abandoned or jettisoned, without any reference to it whatsoever, by this Court in Chow Chun Sang.”

28. It follows that a discount of 10% and upwards from the starting point taken for sentence is only appropriate where the judge is satisfied that a “significant portion” of the dangerous drugs is for self-consumption.  The judge made no such finding.  Without receiving evidence on the issue, and having regard to the Drug Addiction Treatment Centre report in which the applicant had said that he was not a “regular drug abuser” it is difficult to see how he could make such finding.

29. This Court said in its judgment in HKSAR v Wong Suet Hau that, in determining the issue of whether a “significant portion” of the dangerous drugs was for self-consumption, the judge ought to have regard to the following: [14]

“The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.”

30. In the result, in my judgment, the judge was very generous to afford the applicant a discount of 4 months’ imprisonment from the starting point taken for sentence of 36 months’ imprisonment.

31. Having regard to the fact that the applicant had abused Hong Kong’s hospitality in committing the serious offence of unlawfully trafficking in dangerous drugs, the judge was entitled to enhance the resulting starting point for sentence by one month’s imprisonment.  In doing so, the judge noted this Court said in its judgment in HKSAR v Norena Gutierrez Cristhian Andrez [15] that the fact that the applicant committed the offence whilst permitted to stay in Hong Kong as a Form 8 Recognisance holder was a factor in aggravation of the commission of the offence.

32. In HKSAR v Ali Raza, to which the applicant referred in the letter he wrote to the Court, a single judge refused the applicant leave to appeal against the sentence of 6½ years’ imprisonment imposed for unlawfully trafficking in 30.33 grammes of cocaine.  That judgment is irrelevant to the applicant’s application for leave to appeal against sentence.

33. In my judgment, there are no reasonably arguable grounds of appeal against sentence advanced by the applicant in his application for leave to appeal against sentence.

Conclusion

34. In the result, the applications for leave to appeal against conviction and sentence are refused.

35. The applicant is reminded that he has the right to renew either or both of his applications for leave to appeal to the full Court. However, if he does so, and if the Court determines that there was no justification for the renewal of the application (s), the Court has power to order that some of the time that the applicant has spent in custody, from the time that he filed notice of his application for leave to appeal to the time of the hearing of the application, shall not count towards the completion of the sentence of imprisonment.

[1] As an alternative verdict to a charge of unlawfully trafficking in those dangerous drugs.

[2] Appeal Bundle: page 325, counter #446.

[3] HKSAR v Ali Raza (CACC 227/2014; unreported, 11 September 2015).

[4] Appeal Bundle, page 7, paragraphs 4.1-4.2.

[5] HKSAR v Masembo Kilugaja Joram (CACC 271/2015; unreported, 3 March 2016).

[6] Appeal Bundle; page 424, IX.

[7] Appeal Bundle; page 423, VII.

[8] Reasons for Sentence, paragraph 13.

[9] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraph 19.

[10] HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.

[11] HKSAR v Cheuk Kin Man (CACC 294/2009; unreported, 29 June 2010-English translation).

[12] HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572.

[13] HKSAR v Tam Ling Yuen, paragraph 27.

[14] HKSAR v WONG Suet Hau, paragraph 34(3).

[15] HKSAR v Norena Gutierrez Cristhian Andrez (CACC 319/2014; unreported, 30 April 2015).