R. v. WU CHI WAI

IN THE COURT OF APPEAL

1995, No. 680
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He was convicted after trial before Yeung J and a jury of trafficking in 59.39 grams of a crystalline solid containing 56.12 grams of methamphetamine hydrochloride which is commonly known as ice.

2. The facts were quite simple. In the early hours of the morning of 5 April 1995 the applicant was in a taxi which was stopped at a police road block at Austin Road Tsimshatsui. A police officer was asking for production of identity cards. The applicant attempted to run away. He was apprehended. A search was conducted on him and he was found to be in possession of the dangerous drugs which are the subject matter of the charge and a portable telephone. From the outset the applicant did not deny possession of the dangerous drugs. He did however contend that he had the dangerous drugs for his own consumption and that he was not trafficking in dangerous drugs.

3. In the summing-up Yeung J clearly directed the jury that the only factual issue which had to be determined by them was whether the prosecution had been able to prove beyond a reasonable doubt that it had indeed been the intention of the applicant to traffick in dangerous drugs. He further directed them that if they were not so satisfied they should return a verdict of guilty of possession of dangerous drugs.

4. One of the main factors to be weighed in determining whether trafficking had been proved was the quantity of dangerous drugs involved. The Crown called an expert witness Mr Cheng Kok Choi who is a forensic scientist. He gave evidence concerning the different methods by which the dangerous drug could be introduced to the human body and the likely dosages required to feed an addiction. All of this evidence was intended to illustrate the improbability of the dangerous drugs simply being consumed by the applicant.

5. The main ground of appeal relates to the evidence given by this expert. One of the complaints which is made is the uncertain nature of the factual basis upon which the expert's opinion was posited. There was accordingly no scientific basis for the conclusions reached as to how long the said supply would have lasted the applicant.

6. Ms Remedios for the applicant provided detailed particulars of what she regarded as being the principal shortcomings concerning the expert's evidence. These included the methodology adopted in attempting to estimate how long the supply of dangerous drugs would have lasted if it had all been consumed by the applicant.

7. One of the main difficulties in making a satisfactory estimate was the unreliable nature of the underlying facts. For example there was no definite evidence as to how it was proposed that the dangerous drug would be introduced into the applicant's body. According to the information contained in a cautioned statement the applicant said that he proposed using a method of inhaling the dangerous drugs through a filtration process. According to him the supply would last between 30 to 50 days. One of the features of this method is that inevitably there is some wastage as a consequence of the filtration process.

8. The expert accepted this. He was however unable to estimate with any satisfactory degree of precision how much wastage would occur.

9. His evidence was mainly based upon how much of the dangerous drug could be absorbed by one individual. He placed reliance upon average figures. This did not appear to take cognisance of great disparities which may exist between the capacity of different people - particularly addicts - to absorb the dangerous drugs.

10. When Crown Counsel made submissions to the court on how long the supply might last her estimates of time ranged from 91 days to 561 days.

11. As can be appreciated from this the jury received very little assistance upon the subject of how long the supply of dangerous drugs would have lasted the applicant. This naturally had a direct impact upon the main essential issue which had to be determined by the jury namely whether the dangerous drugs were purchased by the applicant for his own consumption or whether they had been purchased for the purpose of trafficking.

12. Unsatisfactory as all of this is it pales into insignificance when regard is had to some of the remarks made by Crown Counsel when she made submissions to the court.

13. One of the remarks she made was to the effect that traffickers in dangerous drugs were likely to be drug addicts. As the applicant had admitted that he was addicted to dangerous drugs this was a particularly damaging observation. She went on to speculate that it would be convenient for such people to test dangerous drugs themselves and that this could lead to addiction.

14. She then suggested that possession of a portable telephone might be something from which an inference of trafficking could be drawn as it was a convenient means of communicating with other people involved in such activities.

15. She then indulged in speculation concerning the cost of the dangerous drugs (which the applicant had told the police cost him $3600 and on the cost of which the prosecution called no evidence to the contrary) and that it may economically make more sense to traffick in the dangerous drugs and make smaller purchases as and when the applicant needed them. There was absolutely no evidence to support these suggestions.

16. What is perhaps most remarkable of all concerning this case is that it would appear from the record that the trial judge made no attempt to prevent Crown Counsel from proceeding in this manner. More importantly in his summing-up he made no attempt to rectify the damage which may have occurred as a consequence of these intemperate and improper submissions.

17. We are forced to the conclusion that the applicant did not receive a fair trial. This conviction is unsafe and unsatisfactory. We treat the application as the appeal and allow it. We quash the conviction.

18. In the circumstances of this case it is obvious that the applicant was guilty of the offence of possession of dangerous drugs and we therefore convict him of this offence. We advised counsel that we would defer sentencing the applicant pending the receipt of a report from the Drug Addiction Treatment Centre.

Sentence

19. It is not necessary to rehearse all the facts as these have been sufficiently dealt with in our judgment on the appeal against conviction.

20. What we now have to deal with is sentencing the appellant for possession of 59.39 grams of a crystalline solid containing 56.12 grams of methamphetamine hydrochloride.

21. We have the advantage of a comprehensive report from Mr Lun Chi-wah of the Hei Ling Chau Addiction Treatment Centre. It appears that the appellant is not drug dependent. There can be no question of his being required to attend at a Drug Addiction Treatment Centre.

22. The amount of dangerous drugs involved is unusually large for a case of simple possession. This being the case there must be a high latent risk factor that part of the dangerous drugs may fall into the hands of other persons by virtue of the fact that it is being held in unstable hands. This is particularly the case on account of the potent addictive nature of ice.

23. As against this we have to bear in mind that at all times the applicant has been consistent in maintaining that the dangerous drugs were for his own use. On the facts of the case it seems almost certain that he would have been prepared to plead guilty to possession and this would entitle him to a substantial discount. In all the circumstances of this case we consider a sentence of two years' imprisonment to be appropriate. This is the sentence which is imposed.