HKSAR v. NGAI HA ALSO KNOWN AS SO YUEN CHU

CACC 107/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 107 OF 2014

(ON APPEAL FROM DCCC 1145/2013)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The dangerous drugs the subject of the charge were 10.62 grammes of a solid containing 8.20 grammes of cocaine and 3.30 grammes of a crystalline solid containing 3.21 grammes of methamphetamine hydrochloride.

2.  The applicant pleaded not guilty to the charge and was tried in the District Court before Judge Woodcock (“the judge”).  On 20 March 2014 she was convicted of this charge and on the same day was sentenced to 5 years’ imprisonment. 

3.  The applicant now applies for leave to appeal against both her conviction and sentence.  At the hearing of her application I refused to grant her leave and said I would give my reasons for doing so later the same day. These are my reasons.

The trial

4.  The prosecution case alleged that on 4 August 2013 at a karaoke nightclub in Yau Ma Tei the applicant unlawfully trafficked in the dangerous drugs particularized in the charge.  It was alleged by the prosecution that the police found the drugs in the applicant’s handbag during a search of the nightclub.  This allegation was not disputed by the applicant and what was in issue at trial was whether or not the applicant knew the drugs were in her handbag.  The defence case was that she had no knowledge of the drugs found and they were not in her possession or under her control.

5.  The drugs were discovered in the course of the police conducting a license check at this karaoke nightclub.  As the police had suspected that drug trafficking activity was taking place on the premises they had obtained a search warrant prior to their arrival.  The applicant was a supervisor and described as a “mama–san” at the nightclub.  It was the prosecution case that during the license check all staff members were asked to produce their identity card but as the applicant did not have hers on her person she led the police officers to her handbag which had been left inside the bar area.  A police officer searched her handbag and found her identity card in her wallet.  He also saw within her handbag a blue resealable plastic bag containing 24 smaller plastic resealable bags which contained the cocaine and “ICE”.

6.  The applicant was then cautioned and in reply was alleged to have said:

“Sir, that is why I bought the ‘Coke’ and ‘Ice’ for consumption just because I am unhappy recently. Please give me a chance.”

If in fact the applicant made this statement then she was, in effect, admitting possession of the dangerous drugs for her own consumption.

7.  The applicant subsequently participated in a video-recorded interview in which she further explained that she put the cocaine in cigarettes and smoked it and consumed the “ICE” by means of an “ICE” bottle. She said she took dangerous drugs twice a day and had bought these drugs from someone called “Ah B” that evening for $500 to $600.  It was the first time she bought dangerous drugs from this person and she said she did not know why the drugs had been packed in small resealable plastic bags.

8.  She also said that she had worked in this nightclub for 3 years and earned $11,000 a month.  In respect of the amount of $3,617 that had been found in her bag together with two mobile phones she admitted that all these items belonged to her. 

9.  The applicant denied making the verbal admission and asserted that the circumstances surrounding the making of it and the making of the subsequent video record of interview were such that both were involuntary.  The alternative procedure was adopted for the purpose of determining the voluntariness of the admission allegedly made by the applicant at the time she was cautioned and the voluntariness of her video‑recorded interview. 

10.  The applicant testified on the special issue and in the course of her testimony she claimed that she had no knowledge of the drugs and that they must been planted in her bag when she had left it on a table at the nightclub unattended.  In respect of the response to caution the applicant denied saying the words attributed to her and alleged that her response had been fabricated by the police officer.  She further alleged she was threatened, induced and oppressed by the police and signed the post-recorded statement without knowing its contents but thinking it was mitigation for the court.  She admitted she was told to read the notebook entry but she said she did not do so because she was scared.  As to the video interview she claimed that she was coached as to what she should say by the police officer and assaulted by another police officer. 

11.  Notwithstanding that her employer engaged a lawyer for her the applicant sent the lawyer away telling him she did not need him.  She did so, she said, because she felt she could trust the police officer who had arrested her as he had promised to help her.  She did not make any complaint to the lawyer of any ill-treatment of her by the police.

12.  The judge did not believe the applicant and ruled her response to caution and her video record of interview admissible.  The applicant did not testify on the general issue but did call an employee of the nightclub.  This person was working on the night of the police raid.  She described how everybody stood or sat still when the police arrived and the lights were turned on.  She said she did not notice the applicant inside the bar area when the police arrived.  She also said she knew of no instances where belongings were stolen by other staff members.

The Reasons for Verdict

13.  In determining the special issue the judge noted that there was an irreconcilable conflict of evidence between the police officers and the defendant turning on credibility alone.  She gave careful consideration to the evidence of all of witnesses and the submissions that had been made.  Then she gave reasons for why she did not believe the applicant’s evidence.  In respect of the evidence of the police officers, she found that it was truthful and reliable and that there were no material discrepancies in it that would cause her to have any doubt about their evidence or to not accept it.

14.  Having admitted into evidence the statement of the applicant made after caution at the time of her arrest and the record of her video interview, the judge gave full weight to the admissions contained in them.

15.  This evidence established that the applicant had knowledge of the drugs in her bag and the issue then was whether or not she had them for the purpose of trafficking. 

16.  Noting that there was no direct evidence that the drugs were intended for trafficking, the judge went on to examine the circumstantial evidence to see whether an inference of trafficking could be drawn. 

17.  The judge concluded that the inference could be so drawn and explained why:

“ However, having considered the evidence, I am sure the defendant did not possess the dangerous drugs for her own consumption. Nothing supports that possibility. Having considered the quantity of drugs being significant and the value being over $16,800, as well as the fact they were packaged in 24 small packets, I find this in itself a clear indication of a trafficking purpose. In addition, the drugs were in a nightclub with private rooms and a steady supply of customers who may also be interested in buying drugs for further entertainment.”

18.  Having concluded that the applicant was in knowing possession of the drugs and that her possession of them was for the purpose of trafficking, she convicted the applicant as charged. 

The Reasons for Sentence

19.  After addressing the circumstances of the offence and the background of the applicant the judge turned to the sentencing principles relevant to the trafficking in multiple types of drugs.  She correctly directed herself on the law relating to the two possible approaches that can be taken when sentencing in such a situation which are described in the authorities as the individual approach or the combined approach. 

20.  The judge noted that although “ICE” was the more serious of the two drugs in which the applicant was trafficking, there was a greater quantity of cocaine found in the applicant’s possession.  Under the relevant sentencing tariffs for these drugs the appropriate starting point for both the quantity of cocaine and “ICE” involved was each around 4 years 4 or 5 months’ imprisonment. 

21.  The judge then decided that the appropriate approach to take in respect of these two drugs was the individual approach, ultimately bearing in mind the totality principle.  She said that after careful consideration she would adopt a total starting point of 5 years’ imprisonment and she arrived at this figure by taking 3½ years’ imprisonment for cocaine and adding to that 1½ years’ imprisonment for the “ICE”.  As the applicant had been convicted after trial she was not entitled to any discount and so the judge imposed a sentence on her of 5 years’ imprisonment.

The grounds of appeal

22.  As the applicant is not legally represented there are no perfected grounds of appeal.  In her Form XI she said nothing more than that she would like to appeal against the sentence and conviction and apply for Legal Aid.  Since her filing of the Form XI she has not provided any further written submissions to the court.  However before me today the applicant has repeated her allegations that she was set up by somebody in the company for whom she worked and was forced to admit to possession of the drugs.  She also complained that she was not given a chance to testify on the general issue by her counsel.  She had nothing to say in respect of her sentence.

Discussion

23.  I have considered the judge’s Reasons for Verdict and can detect no error in them.  She carefully analyzed the evidence of the applicant on the special issue and gave valid reasons for why she did not believe the applicant and why she did believe the police officers.  The applicant may be dissatisfied with the judge’s conclusion as to her credibility as a witness and with the judge’s rejection of the allegations she made against the police officers, but she has not pointed to any error by the judge in the judge’s analysis of the evidence. 

24.  Once the judge admitted into evidence the response to caution made by the applicant at the time of her arrest and the applicant’s subsequent video record of interview, and once the judge concluded that she could place full weight upon the admissions contained in them, it was inevitable that she would find the applicant was in knowing possession of the drugs. 

25.  The only issue that then remained for the determination of the judge was whether or not the drugs were for the applicant’s own consumption or whether she intended to traffic in them.  Again the judge carefully analyzed the evidence and gave sound reasons for why she drew the inference that the applicant was trafficking in the drugs.  

26.  In response to the applicant’s complaint against her counsel I asked her whether she had signed a piece of paper agreeing to his advice to give evidence.  She said she did.  The applicant gave evidence on the special issue as she was bound to do but once she was disbelieved it is not surprising that her counsel may have taken the view that there was little to be gained by repeating that evidence on the general issue.  Instead a tactical decision was made to call a colleague, presumably in the hope that this person might be able to throw doubt on the police evidence. 

27.  In my view none of the applicant’s complaints in respect of her conviction are reasonably arguable and have any prospect of succeeding on appeal.

28.  Notwithstanding that the applicant has not articulated any complaint in respect of her sentence, as she has applied for leave to appeal her sentence I have examined the Reasons for Sentence to see whether I could detect any error by the judge.  The judge correctly directed herself upon the legal principles relevant to the sentencing of an offender who traffics in multiple types of drugs.  The approach the judge took was correct and I can detect no error in the manner in which she calculated her starting point of 5 years.  If anything, it could be said that the judge was lenient as there appears to have been no account taken of the fact that what was being trafficked were multiple types of drugs, in a place of public entertainment, by a person employed in a management role in that place of public entertainment. 

Conclusion

29.  I found that none of the complaints of the applicant provided any basis for granting leave to her to appeal her conviction or sentence and so I refused her leave. 

30.  I informed the applicant of her right to renew her application before the Court of Appeal and I also informed her of the existence of the power contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  I explained the nature of this power to her and of the possibility that should she renew her application before the Court of Appeal that court may exercise this power against her.