HKSAR v. CAPITANIA EDWIN F

CACC 28/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 28 OF 2004

(ON APPEAL FROM DCCC NO. 1141 OF 2003)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence in respect of a charge of trafficking in dangerous drugs. At the conclusion of the hearing on 6 August 2004, we dismissed the application. Our reasons are set out below.

Background

2. The applicant faced three charges before Judge Saunders in the District Court. Charge 1 was for possession of arms and ammunition without a licence, which related to a stun gun. Charge 2 was for trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Charge 3 was for breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115.

3. He pleaded guilty to Charge 3 but not guilty to the other charges.

4. After trial, the judge found him guilty of Charge 2 but not of Charge 1. The judge proceeded to sentence him on Charges 2 and 3. He imposed a sentence of 5 years and 4 months' imprisonment on Charge 2 and 4 months on Charge 3, and ordered the sentences to run concurrently.

5. It is against the conviction and sentence on Charge 2 that the applicant now seeks leave from this Court to appeal.

The evidence

6. We will concentrate on the evidence relating to Charge 2.

7. There was not much of a dispute on the physical evidence. The prosecution's case was that as a result of a search conducted in Room 3, 3rd floor, 34 Haven Street, Wanchai on 20 August 2003, the stun gun (the subject matter of Charge 1) was found. On further search of the room, a black plastic bag was found behind a radio on a shelf. Inside the black plastic bag were found 3 resealable plastic bags that had in them altogether 12.74 grammes of powder containing 9.03 grammes of methamphetamine (commonly known as ICE) and 0.75 grammes of N,N-dimethylamphetamine. These were the dangerous drugs stated in the particulars of offence of Charge 2. Also found in the black plastic bag was a resealable plastic bag containing 30 small unused resealable plastic bags. On top of the radio, there was also a black leather pouch containing a small electronic scale. A plastic bottle or tube with 2 straws containing 10 millilitres of liquid, containing traces of methamphetamine was found behind the radio. Both the prosecution and the defence accepted that this device is used for the consumption of ICE.

8. In response to caution for trafficking in dangerous drugs, the applicant said to the police officer:

"Sir, the ice is for my own use only."

9. In response to caution for possession of equipment fit for injecting or smoking dangerous drugs he said:

"The tube is for me to smoke the ice."

10. When later interviewed under caution, the applicant explained that the stun gun and the black plastic bag were given to him by a friend called Rocky who had returned to the Philippines. When asked why Rocky gave him the empty resealable plastic bags, the scale and the plastic tube, the applicant replied:

"I don't take drugs before. Rocky gave me the ice only these things to try the ice. I use the tube to smoke ice but I don't know what are the uses of those plastic bags and the scale."

11. It was admitted on behalf of the applicant at the trial that he and his wife were the tenants of the room. He did not dispute the evidence that the items were all found inside his room although he disputed the precise locations at which they were found. He said that the scale and plastic tube and straws were inside the black plastic bag and that all were behind a radio speaker on a high shelf on the left side of the room. He also said that after Rocky had given him the black plastic bag, he did not open the pouch containing the scale. He told the judge that having tried the drugs three times in the two weeks since he had been given them by Rocky, he had forgotten that they were in his room. This was, however, not a denial of possession of the dangerous drugs and the various items.

12. The judge did not believe the applicant's explanation given to the police and to the court. He described the applicant's story as "palpably unbelievable".

13. On Charge 2, the judge's conclusion was as follows:

"11. The accused admits possession of the drugs and the knowledge of the nature of the drugs. Having regard to the quantity of the drugs, the presence of the scale and the resealable plastic bags, the inference is overwhelming that, as well as for his own use, the accused was in possession of the drugs for the purpose of unlawful trafficking. It is right that there is no evidence that the scale is working, but its mere presence is sufficient to raise the inference of trafficking. The presence of the scale together with the resealable bags and the quantity of drugs, in the absence of any credible explanation from the accused as to all those items, leads to an overwhelming inference that the accused intended to traffic in the drugs."

Grounds of appeal against conviction

14. On behalf on the applicant, Mr Robert Andrews raises three grounds of appeal.

15. Ground 1 alleges that the absence of any credible explanation as to how the applicant had come to possess the drugs and articles, was not of itself probative of guilt. The judge failed to direct and/or remind himself of the criteria that had to be met before a lie told by the applicant could be used to strengthen an inference of guilt against him.

16. It is to be noted that Mr Andrews does not challenge that correctness of the judge's rejection of the applicant's explanation as to how he came by the drugs and the articles. What he complains is that the judge used the applicant's incredible explanation to find him guilty. We consider that this ground is a non-starter because nowhere in the judge's Reasons for Verdict did he rely on the incredible explanation or lie of how the applicant came by the items related to Charge 2 to strengthen the inference of guilt drawn from the evidence before him. Quite on the contrary, right at the beginning of his Reasons for Verdict, the judge expressly reminded himself of the onus of the prosecution to prove the applicant's guilty, as follows:

"2. Throughout the trial I have kept in mind the obligation of the prosecution to establish the facts and inferences upon which it relies beyond reasonable doubt ...."

17. It is also apparent from paragraph 11 of the Reasons for Verdict cited above that the judge relied on the applicant's admission of possession of the drugs and of his knowledge of the nature of the drugs, the quantity of the drugs, the presence of the scale and the resealable plastic bags, to draw the inference of guilt. While he did mention that those matters, "in the absence of any credible explanation from the accused as to all those items, leads to an overwhelming inference that the accused intended to traffic in the drugs", this does not mean that he relied on the lie or incredible story told by the applicant to assist him in drawing the inference. The judge's reasoning was that the applicant's possession and knowledge of all these incriminating items led to the overwhelming inference that he intended to traffic in the drugs, in the absence of any credible explanation to the contrary.

18. Ground 2 states that collectively, the evidence against the applicant was wholly circumstantial. The articles themselves, and the applicant's possession of them, together with his unbelievable explanation were found to be strands in a cable leading to an overwhelming inference that he had intended to traffic in the ICE. It is alleged that the judge erred in so concluding since there was another inference that could equally have been drawn which was consistent with the proposition that the applicant had told lies in order to minimise the criminality of his possession of the ICE, rather than to disguise an intention on his part to traffic in it.

19. In so far as this ground relies on an alleged error on the part of the judge in relying on the applicant's lie in support of an inference of guilt, as we said before, it has started on the wrong foot. As to the quality of the evidence of trafficking, as opposed to mere possession, which is properly described as circumstantial, that will be dealt with under ground 3 below.

20. Ground 3 seeks to argue that the mere presence of the scale, without evidence that it was in working order, the amount of ICE and the 30 resealable plastic bags, were insufficient evidence for the only reasonable inference to be drawn that the possession of the drugs was for the purpose of trafficking. This ground also complains that the judge had failed to consider that the amount of ICE and the resealable plastic bags were equally consistent with possession of the ICE for self-consumption, which was borne out by the evidence of the plastic bottle with straws.

21. In paragraph 11 of the Reasons for Verdict (cited above), the judge clearly regarded the quantity of the drugs, the presence of the scale and the resealable plastic bags as overwhelming evidence for him to draw the inference that the drugs were possessed by the applicant for the purpose of unlawful trafficking. He also noted that there was no evidence that the scale was working. Nor was he oblivious of the applicant's own use of the drugs, which he apparently accepted. That is why he said that:

"... the inference is overwhelming that, as well as for his own use, the accused was in possession of the drugs for the purpose of unlawful trafficking."

22. Since the applicant's story of Rocky having given him the black plastic bag containing the drugs and the paraphernalia for packaging was unbelievable, it was right that the judge treated the possession of the bag and its contents as without credible explanation. A drug addict might possess some drugs for his own consumption. The drugs could have been bought by him or given to him by others. Yet, the presence of the scale and the 30 resealable plastic bags cried out for explanation. Why should a drug addict possess such articles for weighing and packaging drugs? In the present case, these articles were found together with the large quantity of over 12 grammes of powder containing 9.03 grammes of ICE. The applicant's possession of this relatively large quantity of ICE and the articles does not justify a reasonable inference or an "equally consistent" inference to be drawn that he possessed the drugs and the articles for the only purpose of self-consumption.

23. We consider that Ground 3 is unsubstantiated.

Sentence

24. In sentencing the applicant, the judge said:

"2. I am satisfied that the proper starting point for trafficking in the quantity of 9 grams of Ice is 6 years' imprisonment. You are yourself a drug addict and I accept that you were using the drugs yourself and that you would have consumed some of them yourself, but the scale and the re-sealable plastic bags make it clear that you were going to sell some of them probably to fund your drug habit. I am going to sentence you on the basis that you would have used 2 grams of the Ice for your own purposes and that you would have sold 7 grams of it."

25. The judge then proceeded to impose a sentence of 5 years and 4 months' imprisonment on Charge 2. Regarding Charge 3, to which the applicant had pleaded guilty, the judge adopted a starting point of 6 months, reduced it by one-third for the applicant's guilty plea and sentenced him to 4 months' imprisonment. He ordered the two terms to run concurrently, and as a result, the overall sentence was 5 years and 4 months.

26. Two grounds of appeal are raised against sentence. The first ground is that the division of 2 grammes for own consumption and 7 grammes for sale was entirely arbitrary. The ground further alleges that the sentence imposed was excessive in that the starting point of 6 years' imprisonment adopted by the judge was too high. That is also the substance of the second ground.

27. We first deal with the ground that the starting point of 6 years' imprisonment adopted by the judge for 9 grammes of ICE is excessive. According to the sentencing guideline laid down in AG v Ching Kwok-hung [1991] 2 HKLR 125 at 130E-G, the relevant tariffs as stated by the Court of Appeal were that for possession for unlawful trafficking or trafficking in ICE,

"(1) up to 12 grammes - 3 to 7 years' imprisonment;

(2) between 10 and 70 grammes - 7 to 10 years' imprisonment; ..."

28. Mr David Leung, on behalf of the respondent, submits that the "12" grammes in item (1) is a typographical mistake and the figure should be "10" grammes. We accept that that is clearly the position, as is apparent from item (2) which is for 10 to 70 grammes, or else there would have been an unexplainable overlapping. While up to 10 grammes of the narcotic content of ICE should attract a sentence of 3 to 7 years' imprisonment, we do not see how the 6-year starting point adopted by the judge for 9 grammes in the present case can justifiably be criticised.

29. In his written submissions, Mr Andrews alleged that while the judge mentioned in passing sentence that "I accept that this is the first occasion on which you have appeared before the court and the first occasion on which you have appeared for trafficking in unlawful drugs", these were matters unknown to the judge during the trial. This allegation is factually incorrect, because in paragraph 2 of the Reasons for Verdict, the judge expressly stated that "The Accused is a man of clear record in Hong Kong and I gave that fact due regard." When addressing us, Mr Andrews very fairly withdrew this point.

30. Mr Andrews refers us to HKSAR v Wong Suet-hau & Anr [2002] 1 HKLRD 69 regarding the situation where a court finds that the defendant contends that a large portion of the drugs possessed by him was for his own consumption. At pages 79A-80D of the report, Stuart-Moore VP had this to say:

"(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. 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.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold: Criminal Pleading, Evidence and Practice 2002, para. 5-20).

(4) Where it is accepted that a significant proportion of the drugs were for the defendant's own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the 'latent risk' factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see: HKSAR v Lam Wai Ip (unrep., Crim App No 214 of 1997, [1997] HKLY 349) and ecstasy (see: HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 at p.52, [1998] 2 HKC 371 at p.376)."

31. While what Stuart-Moore VP said was in relation to a defendant who had pleaded guilty to trafficking in dangerous drugs, we consider that the same principle and rules as to sentencing should apply to the present case, because the applicant had all along made admission to the police and before the judge as to his possession of the ICE and the articles, merely contending that the ICE was only used for his own consumption and not for trafficking. The major difference between the present case and the situation alluded to in Wong Suet-hau is that the admission of the applicant here was that the entirety of the quantity of ICE was for his own consumption and he denied trafficking in any portion of it. In the circumstances, it is difficult to criticise the judge for dividing the 9 grammes of ICE as to what proportion was for private use and what proportion was for trafficking, save that there was no concrete evidence in support of that division which is now criticised for being arbitrary.

32. Since the judge did not accept that the entirety or a significant proportion of the ICE was for the applicant's self-consumption, he had two options. He could either impose a sentence to reflect that part of the ICE was for private use and part for trafficking without making a division, or impose a sentence after making known how he divided the quantity. He was in a better position than us in making an appropriate division. He had evidence led before him as to the size of the room of which the applicant and his wife were tenants, the layout of the room and the locations where the drugs and the articles were found. He had also seen the applicant as a witness. All these gave him a better understanding than us of the situation for him to make the division. We are not disposed to interfere.

33. When passing the sentence of 5 years and 4 months, the judge made the reduction from the starting point to take into account that part of the ICE was for the applicant's own consumption. Not only that, the judge ordered the sentence of 4 months' imprisonment on Charge 3 to run concurrently with the 5 years 4 months. Normally we would have expected the sentence for the overstaying offence in Charge 3 to have been ordered to run consecutively to any unrelated offence of a different nature. However, bearing in mind that a slightly lower starting point might, as Mr Andrews pointed out, justifiably have been selected for the quantity of ICE in Charge 2, we decided that, in overall terms, the length of the applicant's sentence was not open to any criticism.

Conclusion

34. For the reasons given above, we dismissed the application for leave to appeal against conviction and sentence.