HKSAR v. FAN CHI KEUNG

CACC 398/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2002

(ON APPEAL FROM HCCC NO. 72 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Fan Chi-keung appeared before Mr. Recorder Ching Y Wong SC on the 1st and 2nd charges of trafficking in a dangerous drug and the 3rd charge of possession of a dangerous drug. He pleaded not guilty to the trafficking charges but guilty to the possession charge.

2. He was convicted by the jury of the 1st trafficking charge and acquitted of the 2nd trafficking charge. In respect of the 1st charge involving 27.94 grammes of a mixture containing 16.49 grammes of heroin hydrochloride, the applicant was sentenced to 6 years imprisonment. In respect of the 3rd charge involving 0.75 grammes of a mixture containing 0.45 grammes of heroin hydrochloride, the applicant was sentenced to a consecutive term of 7 months' imprisonment.

3. The learned Recorder adopted a starting point of 6 years for the 1st charge. For the 3rd charge, a starting point of 9 months was adopted and a discount of 2 months was given for the late guilty plea as the applicant originally pleaded not guilty to the 3rd charge and only reversed his plea after his confession was ruled admissible. The total sentence is 6 years 7 months.

4. The applicant now seeks leave to appeal against conviction in respect of the 1st charge and sentence in respect of the 3rd charge.

The Prosecution Case

5. On 8 October 2001, a party of police officers took turn to lay ambush at Room 1331 Tan Fung House Choi Hing Estate in Kowloon. At about 4:58 pm, the applicant emerged from Room 1331 and he closed the door and locked the gate.

6. The applicant was intercepted outside Room 1329 and searched. The police found from his upper left shirt pocket a Marlboro cigarette box with a resealable plastic bag. The dangerous drug, the subject matter of the 1st charge was found inside the plastic bag. When cautioned, the applicant said, "Ah Sir, I take the white powder to someone to earn a little money." The admission was recorded in the police notebook. The applicant subsequently confirmed the post record by copying a declaration and signing on the notebook.

7. The applicant was carrying the keys to Room 1331. The dangerous drug, the subject matter of the 2nd charge was subsequently found inside a red bucket in the kitchen of Room 1331.

8. The applicant appeared before A.E. Lin Esq. at Kowloon City Magistracy on 9 October 2001. In the course of applying for bail, the applicant produced a pellet of dangerous drug which was the subject matter of the 3rd charge. It appeared that the applicant kept the pellet of dangerous drug in his mouth and was thus able to avoid detection by the police.

The Defence Case

9. The applicant did not give nor call any evidence. It was however put to the prosecution witnesses that he never carried any dangerous drug in a Marlboro cigarette box and he did not have the keys to Room 1331. It was also suggested that he did not make any admission.

Summing Up of the Judge

10. The learned Recorder in his summing up to the jury dealt extensively with the evidence of the prosecution as well as its weakness. With particular reference to the 1st charge, the learned Recorder said the following:

"In respect of the 1st charge, this concerns the actual physical possession of the dangerous drugs since the allegation is that it was found inside the cigarette box which the defendant is alleged to have been carrying in his shirt pocket. That should not be a difficult issue as it all depends upon your view of the evidence of the prosecution witnesses who gave evidence that it was so found inside the defendant's shirt pocket. As I say, I shall be dealing more with the evidence later on.

The prosecution case is a very simple one. It says that the defendant was in possession of the dangerous drugs as stated by the particulars of the charges for the purpose of trafficking"

11. In respect of the 1st charge, the issues for the jury's consideration and decision are simple and straight forward, namely whether the jury can be satisfied beyond reasonable doubt that the applicant was in physical possession of the dangerous drug in question and if so whether such possession was for the purpose of trafficking.

12. The learned Recorder explained to the jury in details the meaning of possession. He also pointed out to the jury that the prosecution case was that the applicant was in possession of the dangerous drug for the purpose of trafficking, namely for the purpose of supplying it or dealing in or with it. The learned Recorder also explained to the jury the meaning of trafficking.

Grounds of Appeal Against Conviction

13. In his homemade grounds, the applicant relied heavily on what he perceived to be the weakness in the prosecution evidence, particularly the evidence of the police officers relating to the alleged confession made by him.

14. It was also suggested that the judge had failed to direct the jury on the alternative conviction of simple possession.

15. There were minor omissions and contradictions in the evidence of the police officers. But the jury should be well aware of such matters, as the learned Recorder had made special reference to them. Despite those omissions and contradictions, the jury was entitled to accept the prosecution case that the applicant was in possession of the dangerous drug specified in the 1st charge and that he was trafficking in them. It was purely a question of facts for the jury to decide. There is nothing in this ground.

16. Technically the learned Recorder could have directed the jury that if they were satisfied on the issue of possession, they should then consider whether the applicant was in possession for the purpose of unlawfully trafficking. The jury could have been told that if they were satisfied with the element of possession but not with the element of trafficking, they could convict the applicant of simple possession of the dangerous drug in question.

17. Whether alternative conviction of simple possession should be left to a jury depends on the facts of each case. The applicant's defence was an outright denial and allegation of fabrication. There was in our view, no realistic evidential basis upon which a simple possession verdict could be returned.

18. We accept the contention of the Respondent that it was not incumbent upon the learned Recorder to direct the jury on the alternative verdict of simple possession. (See the judgments in HKSAR v Tsui Siu-lin and another CACC 497 of 1997, R v Tam Kim-yee [1995] 1 HKC 546.

19. The jury was directed on the basis that a guilty verdict could be returned only if they were satisfied beyond reasonable doubt both as to possession and trafficking. It follows that if the jury were satisfied only with possession and not trafficking, they would have acquitted the applicant of the charge. In that regard the failure to direct on the alternative conviction of simple possession did not result in any unfairness or injustice to the applicant, particularly in this case since there was no suggestion of a case of simple possession, and the essence of the prosecution case consisted of an statement by the applicant that he intended to sell the drugs. The jury evidently accepted the evidence of the police that the drugs were on the applicant's person, and there was no rational or suggested basis for them accepting that evidence but rejecting the evidence of what the applicant had said to the police when the drugs were found.

20. The applicant relied on Chan Chuen Ho v HKSAR [1990] 1 HKC 707 in which the judge in directing the jury on the issue of trafficking, said the following:

"Failure to rebut the presumptions will result in the accused's conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs, the subject matter of the two counts, and that his possession was for the purpose of trafficking in them."

"Additionally, the prosecution has put a number of matters before you, each of which it invites you to accept as having been proved...When these various matters, if established, are looked at together, the only reasonable inference to be drawn from them is that he was in possession of the two lots of drugs in order to traffick them."

21. The Court of Final Appeal in allowing the appeal took the view that the aforesaid passages was a misdirection when "it was apt to be understood as meaning that as a matter of law there is a presumption of trafficking once possession is proved. Understood in that way it reversed the burden of proof on the question of trafficking."

22. The learned Recorder in the present case did not make such mistakes. He had clearly and accurately directed the jury on the burden and standard of proof with regard to the elements of the charges in the following terms:

"Firstly, I start with what we call the onus of proof, that is, the duty of proving. This is upon the prosecution and in respect of each allegation made against the defendant and, of course, also, at the end of the day, by the facts so proved to your satisfaction to prove the guilt of the defendant to the charges.

You must note, members of the jury, that the defendant does not have to prove anything. He need not give evidence at all or call witness. This is because he is presumed to be innocent until proved guilty. The duty of proving is solely that of the prosecution, and that is why we say in legal terms that the onus of proof is upon the prosecution. Not only has the prosecution the duty to prove, it also has the duty of proving to high standard, and that is what is known as the standard of proof.

The prosecution is required by law to prove all allegations made, and, of course, the guilt of the defendant to the charges beyond reasonable doubt."

23. In our view, Chan Chuen Ho's case (supra) does not assist the applicant at all. Clearly the applicant was convicted by the jury of the 1st charge because they were satisfied that the applicant was in possession of the dangerous drug for the purpose of unlawfully trafficking.

24. We find no valid ground of appeal against conviction. The applicant was rightly convicted of the 1st charge. The application for leave to appeal against conviction is refused.

Ground of Appeal Against Sentence

25. The applicant's only complaint in relation to sentence was that he had not been given a full one-third discount for his guilty plea to the 3rd charge.

26. The applicant did not plead guilty on the first day of trial. He only reversed his plea after his confession had been ruled admissible. The plea was indeed not a timely one.

27. The learned Recorder was entitled to view it as a change of plea at a very late stage. He was justified in reducing the one-third discount.

28. The applicant's complaint on the sentence is not a valid one. However, we still have to consider if the total sentence he received is proper, particularly whether the 7 months should be consecutive to the 6 years.

29. The learned Recorder in sentencing the applicant, said the following:

"...I must follow the sentencing principle of according to you the most favourable interpretation of those facts.

I do not accept your evidence about how you had obtained and came to be in possession of that pellet of dangerous drugs. That being so, I have nothing before me about those matters. It may well be that you have successfully kept that pellet in your mouth to avoid it being found and with a plan to use it to escape conviction for other dangerous drugs found on you. However, that is speculation and I do not rely upon that in any way, otherwise it would constitute an aggravating factor. Therefore, putting it simply, you were in possession of this pellet of dangerous drugs and that was all.

In the circumstances, there being no connection between the 1st and 3rd counts, your 7 months' imprisonment on the 3rd count is to be consecutive to the 6 years on the 1st count and therefore, in total, you are sentenced to 6 years and 7 months."

30. If the most favourable interpretation of the facts is accorded to the applicant, we are not sure it was right to conclude that the 1st and 3rd charges are unrelated.

31. In any event, the consecutive sentence of 7 months on the third count is manifestly excessive. This very small amount of heroin possessed by the applicant barely affected the gravity of the case when this is set against the far larger quantity in which the applicant had been found guilty of trafficking.

32. We are of the view that justice will be served by imposing a concurrent sentence.

Conclusion

33. The application for leave to appeal against conviction is dismissed. The application for leave to appeal against sentence is granted. We treat the application as the appeal and allow the appeal.

34. The individual sentences on the 1st and 3rd charges are to remain but to be served concurrently. The total sentence is reduced from 6 years and 7 months to 6 years.