HKSAR v. TAN XIU YUN

CACC 346/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 346 OF 2014

(ON APPEAL FROM HCCC 306 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  On 30 September 2014, the applicant was convicted in the Court of First Instance by M Poon J on her own plea of one count of trafficking in a dangerous drug, namely, 222.64 grammes of a crystalline solid containing 216.17 grammes of methamphetamine hydrochloride (“Ice”) , contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  She was sentenced to 8 years and 4 months’ imprisonment.  By a Notice of Application for Leave to Appeal filed on 10 October 2014, the applicant applies for leave to appeal against her sentence. 

2.  At the hearing of the application we dismissed it and said we would hand down our reasons for doing so at a later date.  This we now do.

The facts of the case

3.  At about 1:58 am on 20 March 2013, the applicant, the holder of a PRC permit for travel to and from Hong Kong and Macau, was seen by police to be walking nervously along the pavement holding a white plastic bag in her hand, tight to her waist area.  She was intercepted and it was found that inside the white bag there was another bag containing nine packets of suspected dangerous drugs.  The applicant was also in possession of a quantity of currency amounting to $24,955.  Under caution, she stated that the “Ice” did not belong to her and she was delivering it for another.  She said she charged $500 for each packet of drugs.

4.  It was subsequently found that the suspected dangerous drugs seized from the applicant contained the “Ice” that is the subject of the charge.  The retail value of this “Ice” at that time of its seizure was estimated at $176,998.

Mitigation

5.  The applicant, aged 45, is from the Mainland but is married to an elderly Hong Kong man who is dependant upon CSSA for his financial support.  This man is her second husband.  She was a housewife and previously worked as a waitress. She has two children, aged 15 and 18 respectively, from a previous marriage who are being looked after in the Mainland by her first husband.  The applicant has one previous unrelated record for gambling for which she was fined $500 in 2012. The judge, however, said this was a minor offence and she would treat her as a person of clear record for the purpose of sentencing her in this case.

6.  It was said on the applicant’s behalf that she was remorseful as shown both in a letter she wrote to the court and her early guilty plea.  Her counsel informed the court that she committed the present offence because she and her aged husband were in financial difficulty.  Her counsel conceded in the course of his speech at the sentencing hearing:

“Other than the guilty plea, it is accepted that there is no other mitigating factors other than the guilty plea.”

No mention was made of the applicant being a drug user or of any of the drugs in her possession being for her own consumption.

The Reasons for Sentence

7.  Having considered all the circumstances of the case and the sentencing guidelines set out in AG v Ching Kwok Hung [1991] 2 HKLR 125, the judge adopted a starting point for sentence of 12½ years’ imprisonment.  The applicant was given a full one-third discount for her guilty plea which reduced the sentence to one of 8 years and 4 months’ imprisonment.

Grounds of appeal

8.  In a letter submitted to the court by the applicant for a mention hearing on 15 July 2015, the applicant stated for the first time that part of the “Ice” found on her was for her own consumption.  In summary she said that:

(i) she started consuming “Ice” since 2006 and she consumed about 5 grammes of “Ice” each day;

(ii) the urine test report obtained by her legal representative indicated the presence of “Ice” in her urine sample;

(iii) her legal representative had advised her not to submit the urine test report to the court as she had not told the police about it at the time of the arrest and thereafter.  Her legal representative said that there would not be any facts or further evidence to substantiate her claim unless she testified in court.  She was told that she might not receive the full one-third discount on the sentence if the judge did not believe her after hearing her testimony;

(iv) she was so flustered that she did not ask her legal representative to submit the report to the court.

9.  Furthermore, the applicant submitted a medical report dated 21 March 2014 prepared by the medical officer at Tai Lam Centre for Women which showed that urine samples taken from her on 22 March 2013 (two days after the arrest) tested positive for amphetamine.  This is the urine test report that the applicant contends her counsel advised her not to produce to the court.

10.  In a subsequent letter to the court the applicant set out her Grounds of Appeal which essentially repeated what she had said in her earlier letter.

11.  At the hearing the applicant repeated what she had said in her letters.  She said the legal advice she received was that because she had not mentioned to the police that part of the drugs were for her own consumption her claim would not be believed by the judge.  If the judge did not believe her then her one-third discount would be at risk. 

12.  She also corrected a mistake she had made in her letters to the court when she said she consumed 5 grammes of “Ice” per day.  She said this should be 0.5 grammes per day.  She also claimed, for the first time, that she could take as her reward part of the drugs that she was delivering, in lieu of a monetary payment.

Discussion

13.  The applicant has no complaint about the starting point the judge adopted and her application is based solely on her complaint that she did not receive any discount for self-consumption because, on the advice of her counsel, self-consumption was not advanced by him in mitigation.

14.  The applicant’s claim that part of drugs seized from her were for her own consumption can only be raised on appeal if a factual basis is laid for it.  This factual basis is the evidence of the applicant and of the Tai Lam medical officer as set out in his report of 22 March 2013.  The only way this evidence can be placed before us is pursuant to the power given to the Court of Appeal by section 83V of the Criminal Procedure Ordinance, Cap 221.  The operation of section 83V was explained by the Court of Final Appeal in Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20.  In this case, Chan PJ, in giving the judgment of the court, said at page 25, D-F:

“Under s.83V(1)(c) of the Criminal Procedure Ordinance (Cap 221), the Court of Appeal, at the hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interest of justice, receive the evidence, if tendered, of any witness. The conditions to be satisfied before receiving such evidence are provided in s.83V(2): the fresh evidence is likely to be credible; it would have been admissible in the courts below; it is relevant to an issue in the appeal; there is a reasonable explanation for the failure to adduce it in the courts below; and the court is satisfied that it would afford a ground of appeal. See also Chan Tung Cheung v HKSAR [1998] 1 HKLRD 36, HKSAR v Cheng Sui Wa [2003] 4 HKC 571, HKSAR v Cheng Wui Yiu (unrep., CACC 532/2004, [2007] HKEC 2302).”

15.  The relevant pre-conditions for this application are whether the applicant has provided a reasonable explanation and whether her evidence is credible. 

16.  We shall deal first with whether the applicant has provided a “reasonable explanation” for failing to adduce the medical report on her urine sample at the time her counsel was addressing the court on sentence and to advance a claim, supported by her own evidence if necessary, that part of the drugs were for her own consumption.  The reasonable explanation is to lay the blame on her counsel whom she, in effect, accuses of providing her with incompetent legal advice.  It is necessary for the applicant to go this far for the Judicial Committee of the Privy Council in R v Rodolpho de los Santos [1992] 2 HKCLR 136 at page 152, lines 29-30 said of the reasonable explanation requirement in section 83V(2)(b):

“… a conscious decision, not to adduce evidence, unless it amounts to flagrantly incompetent advocacy, does not provide a reasonable explanation.”

17.  For the purposes of dealing with this application we shall assume that the applicant’s counsel did advise her that there was no likely benefit to be obtained from making such a claim because there was no independent evidence to support it, that the judge was unlikely to accept it without the applicant testifying in support of it in a Newton enquiry and that the claim being made for the first time at trial was not likely to be believed, and that if she was disbelieved on such an inquiry she may not receive the benefit of the full one third discount for her plea of guilty.  If such was the advice given, could it ever be regarded as incompetent?

18.  In order to determine whether the applicant has been incompetently advised it is necessary to turn to the law on discounts for self-consumption in drug trafficking cases.  This can be found in the case of In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, where this court set out the approach to be adopted by the sentencing judge when considering a trafficker’s claim that part of the drug was for the trafficker’s own consumption.  The court said:

“33. ... in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; …

34. Arising from these considerations:

…

(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.”

19.  The court went on to list the factors to be taken into account in determining whether to accept the claim of self-consumption.  Amongst the factors the court listed were:

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

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

(iii) 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;

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

(v) the explanation given by the defendant following arrest; and

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

20.  The court went on to say:

“Where the mitigation has necessitated the holding of a Newton enquiry after which the mitigation is rejected, the court will be entitled to reduce by an amount appropriate to the circumstances, the discount normally given following a plea of guilty (see: R v Lee Chiu Pang [1995] 2 HKC 523 at 526).”

21.  All of these are matters of which the applicant’s trial counsel was clearly well aware as his advice to her resonates with the statements of law that we have quoted. 

22.  Here the following facts are relevant to whether a contention of self-consumption could be established:

(a) a substantial quantity of “Ice” (216.17 grammes) worth HK$176,998 was involved;

(b) when arrested, the applicant possessed cash of HK$24,955 and admitted under caution that she delivered the “Ice” for someone out of momentary greed.  She said that there were 9 packets of “Ice” and she would charge HK$500 for each packet;

(c) the applicant’s present husband, who resides in Hong Kong, is 70 years old and is on CSSA;

(d) her counsel submitted in mitigation that the applicant committed the present offence because she needed money.

23.  In the present case it is important to note that the medical report shows only that the applicant was a user of amphetamine and to that extent, but only to that extent, can the report be said to support a claim by her that part of the drugs in her possession were for her own consumption.  However, it is not enough for the applicant to show that she is a drug addict and regularly abuses “Ice”.  In order to be entitled to a discount in respect of her sentence for trafficking in these drugs she has to persuade the court that she would be consuming part of these drugs. Making such a claim and being an “Ice” abuser does not necessarily lead to a court accepting a claim of self-consumption for drug addicts can feed their addiction in numerous ways, one of which is to fund it by earning money from trafficking in it.

24.  All the evidence in this case pointed to the applicant being a drug addict who earned money from trafficking in order to fund her addiction.  The applicant was delivering drugs on behalf of a trafficker and was being paid $500 for each delivery of pre-packaged drugs.  This was what she herself admitted to the police under caution.  In this scenario it does not seem to us that the applicant’s claim that part of these drugs were for her own consumption is a credible one.  Her belated claim, advanced only at the hearing of her application, that she could keep part of the drugs as her reward does not add to the credibility of her claim; rather it detracts from it as it has all the hallmarks of a desperate last minute attempt to fill a gap in her claim in order to make it more believable.

25.  Faced with this factual matrix the advice provided to the applicant by her counsel was not only legally correct, it was also good practical advice that protected her interests.  The applicant has failed to show that the reason she did not adduce this evidence at trial was because she acted upon incompetent legal advice and, as such, has not met the section 83V(2) requirement of providing a reasonable explanation.

26.  However, we are also of the view that the applicant’s claim that part of the drugs were for her own consumption is not “evidence likely to be credible,” to use the words of section 83V(2).  That phrase is to be interpreted as “evidence well capable of belief.”[1]

27.  Here, the drugs were all packaged ready for delivery to customers and the applicant admitted that when intercepted by the police she was in the process of delivering them.  She made no suggestion to the police that part of her reward for doing so would be a “payment in kind” by receiving one or more of the packets.  Rather, she claimed she would be paid in cash for her drug delivery work.

28.  In our view, the applicant has clearly failed to provide a “reasonable explanation” for failing to adduce the report of the medical officer and to testify at her trial as required by section 83V(2)(b) of the Criminal Procedure Ordinance, Cap 221.  Furthermore, we do not think that her testimony that she seeks to adduce before us is likely to be credible. The applicant not having satisfied the pre-conditions set out in section 83V(2) we do not think “reception of the evidence necessary or expedient in the interests of justice.”  We, therefore, decline to receive the report of the Tai Lam medical officer or the testimony of the applicant. 

Conclusion

29.  For these reasons we refused the application to adduce fresh evidence on appeal and, there being no other ground of appeal, the application for leave to appeal against sentence was dismissed.

[1] From the judgment of Edmund Davies LJ in R v Stafford and Luvaglio (1969) 53 Cr App R 1 and applied in Hong Kong by the Court of Appeal in R v Ch’ng Poh [1996] 1 HKCLR 18 and HKSAR v Yeung Kin Wai CACC 285/2000, unreported, 9 May 2002.