HKSAR v. YAN CHI WAI

IN THE COURT OF APPEAL OF THE HKSAR

1997, No. 92
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant stood indicted on three counts in the Court of First Instance: a count of trafficking, a further count of trafficking and a third count of possession. A notice of abandonment has been filed in respect of his application for leave to appeal against sentence in the first and second counts and his application for leave to appeal against both conviction and sentence in the third count. The only remaining matter before us is his application for leave to appeal against conviction in respect of the first and second counts.

2. The first count concerned ice and cannabis found in premises at Room 2207, Block M, Luk Yeung Sun Chuen, Tsuen Wan. The quantities retrieved by the police were 69.35 grammes of a crystalline solid containing 67.08 grammes of ice, known chemically as methamphetamine hydrochloride, and 77.15 grammes of cannabis. The second count concerned 892.45 grammes of cannabis found in his car. The applicant stood trial. He gave evidence before the jury. He was found guilty and sentenced by the Judge. The applicant feels aggrieved by the verdicts. He seeks leave to appeal against conviction.

3. His convictions of trafficking in both counts are the subject-matters of his present application. We have had able assistance from Mr Kwok, counsel for the applicant. Not only has Mr Kwok argued within the ambit of the applicant's substantial complaints, counsel has also provided us with his closely reasoned skeleton argument. The principal grievances can be shortly stated: (1) the ambiguity in the verbal and other admissions allegedly made by the applicant and an incidental complaint, as it is submitted, that alternative directions on trafficking in respect of ice and cannabis should have been given to the jury. Put another way: on the ambiguity, the jury should have been given an option to return a guilty verdict to trafficking of cannabis and not ice and perhaps vice versa. The other substantial complaint is (2) that the Judge should have directed the jury that they could return a verdict of guilty of trafficking in or simple possession of ice and cannabis disjunctively. It is put by Mr Kwok in the Perfected Grounds of Appeal thus: the learned trial judge had failed to direct the jury that they could find the appellant guilty of possession but not guilty of trafficking in ice and/or cannabis.

4. The incident took place on 2^nd April 1996. Armed with a search warrant, the police went to the charge premises from which the applicant emerged. Dangerous drugs including ice and cannabis, chemicals and paraphernalia for manufacturing were found in the premises. The applicant was arrested. When the police confronted the applicant at the scene of his arrest, he said in response: "Sir, the ice and cannabis were for my own consumption. I also sell it to other people to make money".

5. The applicant was then taken downstairs to his car. After a search was made and cannabis found, being the subject-matter of the second count, he said to the police: "Sir, give me a chance. I consume some of the cannabis. I only sell to people when I have no money". He refused to sign a post-recording of his first confession made at the scene of his arrest, but he signed the post-recording of the confession made by him after the car search. However, the jury had the benefit of both verbal admissions in evidence.

6. He gave statements by way of answers to questions asked of him at two subsequent interviews. They were produced and marked P.32 and P.33 at the trial. In P.32:

Question 10: What were the five packets of crystalline solid (stored) inside the brown-coloured box found inside the left drawer of the dressing table?

Answer: They were ICE.

Question 11: What are ICE?

Answer: Dangerous Drug.

7. For those five packets of ice, the answer stopped there.

8. There were four packets of heroin that he was asked about by the police in Question 12.

Question 12: A packet of No. 4 heroin was found inside the brown-coloured box. What did you use it for?

Answer: It was for my own consumption.

9. Naturally, one has to ignore the tense used in these questions and answers as recorded.

Question 13: From the left drawer of the dressing table, the brown-shaped metal case containing four packets of crystalline solid was found, what were they?

Answer: They were ICE.

Question 14: What did you use ICE for?

Answer: They were for my own consumption.

Question 16: From the right upper drawer of the dressing table inside your bedroom, seven packets of crystalline solid were found. What were they?

Answer: Cannabis.

Question 17: What did you use cannabis for?

Answer: Some of them were for my own consumption while some of them were for sale.

Question 18: How did you get the cannabis?

Answer: I sold them in Hanoi Road, Tsim Sha Tsui.

Question 19: Whom did you sell to?

Answer: I sold it to Bun Chai.

Question 21: When did you buy them from Bun Chai?

Answer: Two days ago.

Question 22: How much cannabis did you buy?

Answer: Five "on".

Question 23: How much were five "on" of cannabis worth?

Answer: $2,500.

Question 24: How did you sell the cannabis to other people?

Answer: If people wanted to have some cannabis, they would page me and left their location to me. I would then bring them the cannabis.

Question 25: You sold cannabis to other people. How much did you sell them at?

Answer: I sold at the price of $700 an "on".

Question 26: Whom did you buy the ICE from?

Answer: I bought them from Bun Chai.

Question 27: When did you buy and how much did you buy?

Answer: I bought two "on" of ICE two days ago.

Question 28: How did you consume ICE?

Answer: (Then the applicant described his method of consumption. Later the applicant elaborated on the way in which he consumed ice.)

10. As to ice, the tenor of his confessions was that nothing was earmarked for self consumption as it was "also" for sale "to other people to make money". As to cannabis, from the same confession made to the police at the scene of his arrest, a later confession made after his car search and his given answers as recorded in P.32, it is reasonably clear that he was carrying on a trade with the cannabis he had. In the other interview record, P.33, the applicant categorically admitted that he was trafficking in cannabis.

11. For both ice and cannabis, the applicant had given no evidence or statement that any of them was exclusively reserved for his own consumption, hence it was open to the Judge to direct the jury in the way he did. There was no justification for criticizing the Judge for withholding from the jury the alternatives which counsel suggests. The Judge said of the first admission at the scene of his arrest: "It is an admission to trafficking in both those substances". Ice and cannabis are both dangerous drugs. The offence charged in the first count was simply one for "trafficking in dangerous drugs", involving in the same offence substances such as the ice and cannabis, and the applicant's first verbal confession to trafficking related to both of these dangerous drugs. There was but one alleged illicit activity. It was a verbal confession to one offence. Nothing called for a different treatment of the ice from the cannabis in that one single offence in the first count. The Judge did not do so. The Judge also dwelt extensively and fairly on the answers of the applicant as recorded in P.32. In addition, the jury was instructed to focus on the quantities found, the manner in which the substances were kept and the usual dose for each consumption. The applicant had never claimed to have kept all the substances exclusively for his personal use. The applicant said and we repeat: "Sir, the ice and cannabis were for my own consumption. I also sell it to other people to make money." In our view, the Judge was correct in so directing the jury on the applicant's first confession made at the premises, that is to say, it was an admission to trafficking of ice and cannabis.

12. For the cannabis, in addition to his answers to the police at the interviews as recorded in P.32 and P.33, the jury also had his response to the police after his car had been searched and we repeat again what he said: "Sir, give me a chance. I consume some of the cannabis. I only sell to the people when I have no money." P.32 and P.33 both contained answers which clearly implicated him in trafficking in cannabis. As in the case of ice, what was important is that the applicant had made no claim that the cannabis in his custody was kept only for his own consumption, not for trafficking. To the jury, it must have been the case for both ice and cannabis that the substances seized by the police were all for sale, though at different times. With such a supply in hand, it would have been impossible for the applicant to maintain that he would not need or welcome cash for reducing his stock. It was an irresistible inference of trafficking that the jury could draw. The evidence was sufficiently clear. There was no evidential basis for them to have understood it in any other way. There was no evidential basis for putting to the jury what is, in common parlance, described as "contingent trafficking". Indeed, the confession at the scene was, as the Judge directed the jury in his summing-up, "an admission to trafficking in both those substances". There was nothing in it or in his later confession or statements to suggest anything otherwise than that the drugs were for sale.

13. In view of the references made in the same first confession to both substances, viz. "The ice and cannabis were for my own consumption. I also sell it to other people to make money", for the first count the Judge rightly found it unnecessary to deal with the haul seized by the police from the premises separately in terms of ice and cannabis. After all, both substances were dangerous drugs for the purposes of the offence charged.

14. The confessions, statements and circumstances were such that the applicant could be either guilty or not guilty of trafficking of both of these substances in his hands. Despite the applicant's claim of some for self-consumption, the dangerous drugs together with those not yet consumed were clearly all held for the purposes of trafficking. In the circumstances, it would be unreal to offer an option of returning a verdict of guilty to possession with respect to both or either of the substances.

15. In his skeleton argument, counsel further complains of another direction of the judge viz. "So if you found that these drugs were for, either wholly or in part - any part these drugs - for onward delivery to anyone else for any reason, or being stored for someone else, then they are being trafficked in". That direction was issued in the context of the example given by the judge of a heroin addict who had bought two packets "intending them for his own use". The very fact that the heroin addict was ready to pass on any of the two packets or any of the dangerous drugs he had acquired was good evidence that those dangerous drugs or any of them were being held for trafficking. The addict in the Judge's example had clearly not taken the drugs in his possession out of unlawful circulation. In the context of his heroin addict example, what the Judge said cannot be flawed.

16. These two main contentions are, as it were, pillars on which rests the applicant's application. In our view, there is no substance in either of them. Counsel has so clearly put the application before his court that it is quite unnecessary to deal specifically with the different grounds of appeal. There is nothing in any of the grounds advanced, which would merit this court interfering with the convictions. The verdicts are neither unsafe nor undissatisfactory. Despite counsel's careful analysis both in law and on facts, we are unable to accede to the applicant's application for leave to appeal against conviction. His application is therefore dismissed.