HKSAR v. YAN SUK YIN

CACC 151/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 151 OF 2001

(ON APPEAL FROM HCCC NO. 346 OF 1999)

____________________________________

_______________________________

______________

J U D G M E N T

______________

Hon Stock JA (giving the judgment of the Court):

1 This case came before this court, not quite as presently constituted, on 12 July 2002 when the applicant, then unrepresented, sought to restore an application for leave to appeal against sentence which application, as well as an application in relation to conviction, she had previously abandoned. We were concerned about certain directions given by the trial judge to the jury as to what, as a matter of law, constituted the act of trafficking in dangerous drugs. The applicant had, at one stage, been granted legal aid for the purpose of an appeal against conviction, but her certificate had been withdrawn. It was in these circumstances that we then granted the applicant legal aid, so that she might be represented upon an application to treat the abandonments to which we have referred as nullities. It is in this way that the matter returned to us in January this year, with the applicant represented by Mr Loughran, and in January we adjourned further until today.

2 The applicant was indicted upon one count, which alleged that on 28 June 1999 inside Flat 6 on 16th floor of a building in Wanchai she unlawfully trafficked in a dangerous drug, namely, 113 grammes of methamphetamine hydrochloride, that is, the drug commonly called "ice". She pleaded Not Guilty, and was tried upon that count by Pang J and a jury in March 2001.

3 The evidence fell within a narrow compass. The police raided flat 6, which was in the building upon which they had been maintaining observation. A man had emerged; the police broke in; another man was inside the flat. The premises were divided into five rooms. All the rooms, save one, were empty. But one, room 5, was locked and the occupant, the applicant, would not open the door. When eventually the police broke down the door, the applicant was standing on a bed by the window. Another officer had seen a female throw an object out of the window. The object landed on a canopy, and was recovered, and what was found were four plastic bags with drugs and a weighing scale. That was the long and the short of the evidence in the case. The applicant did not give evidence.

4 The issue in this case was whether it was this applicant who had been in possession of the drugs and, if so, for what purpose. The judge said to the jury that the sole issue was whether it was proved that the applicant had been trafficking in these drugs, and in this regard, he addressed the term "trafficking". He provided its statutory definition, and said:

"It includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking." (page 7H)

Then he said this:

"In this case we are not concerned with importing or exporting, right. We are also not concerned with procuring or supplying activities. We are concerned with that part of the definition about dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking. That is the last part of the definition, 'dealing in or with the dangerous drug or possessing the dangerous drug for the purpose of trafficking'.

Let me give you an example. If a person is engaged in arrangement for the storage or storing a dangerous drug, either for herself/for himself or for another person, then such activity would come within the meaning of dealing in or with the dangerous drug.

Likewise if a person is trying to dispose of a dangerous drug to avoid detection by the police, then it would aslo come within the definition. No money needs to be involved or change hands. The prosecution does not have to prove that the defendant had gained any monetary or financial benefits from the trafficking activities." (pages 7 and 8)

Then he later commented:

"The prosecution does not have to prove actual trafficking activities. All they need to show is that the dangerous drugs, or any part thereof, are intended for no other purpose except to be used for trafficking in a sense which I have described."

The sense which the judge had described was, as we see, twofold: storage, which might include storage for oneself; and, secondly, an attempt to dispose of drugs to avoid detection by the police. There was no further direction on the issue of trafficking.

5 With respect, the judge was in both aspects, in both senses, incorrect. As explained in HKSAR v Ng Hung Chi CACC 186 of 2000, 12 March 2002 (unreported), mere storage without more is not in itself trafficking. If that were so, every addict keeping drugs in his premises intended entirely for his own consumption would also thereby be constituted a trafficker. Nor is the mere fact of throwing drugs away to avoid detection, trafficking. If that were so, it would be to attribute to the word "dealing" a sense that every time a drug is moved or hidden by a consumer, who is no more than a consumer, that movement or that act of hiding the substance renders him a dealer; and that is not the sense in which the word is used in the section.

6 The passages which we have cited represent the sole directions given by the judge to the jury on the question of trafficking. Whilst the mere quantity of drugs might have supported a suggestion of engagement in the supply of these drugs to others, this was not touched upon and, as far as we know, no evidence was left to support such a suggestion; nor were the jury invited to consider whether the applicant might have assisted someone else to store the drugs for the purpose of supply. They were not told that if she had the drugs solely for her own consumption, she was not guilty of trafficking. Yet they were, in effect, told that the mere act of storage, even for her own purposes, and the mere act of throwing drugs away, rendered her a trafficker. In the light of those directions, the jury had little alternative but to convict which, by a majority of 6-1, they did. She was sentenced to a term of 11 years' imprisonment.

7 That the errors in the summing-up to which we have referred were material, we have no doubt, and in the circumstances which we have described, the conviction for trafficking is one that should not stand.

8 On 24 April 2001, the applicant filed her notice of application for leave to appeal against conviction and sentence. We are told that trial counsel advised that there were arguable grounds of appeal against conviction, although not against sentence. We are not told what grounds trial counsel provided for that advice. So, on 23 July 2001, the Director of Legal Aid granted the applicant legal aid to appeal against conviction. For reasons of which we are not aware, the Director took further advice from another barrister, not trial counsel, and he advised, clearly wrongly in our view, that there were no sufficiently arguable grounds against conviction. We are told that in the Opinion provided he did not refer to the directions which we have cited. He advised that there were no errors of law in the summing-up. In accordance with that advice, the legal aid certificate was, on 9 August 2001, discharged. The applicant was sent notice of the discharge, as well as reasons for that discharge which said this: "Having considered all the appeal papers, counsel is now of the view that there was sufficient evidence to found your conviction; there was no misdirection or error of law on the part of the trial judge such as to raise a realistic prospect of the appeal succeeding." Having been told that, the applicant abandoned her applications for leave to appeal against sentence and conviction. The advice which she had been given was, with respect, obviously wrong and, clearly, she was misled on the basis of it to abandon her application. There is ground in the authorities for the view that erroneous advice as to merits does not render an abandonment a nullity. Given all the circumstances of this case, and its history, and also the alternative courses for which this applicant would otherwise still further have to wait for her remedy, we are prepared, in this particular and very unusual case, but without deciding the point of law to which we have just referred, to treat the abandonment of the applications as a nullity.

9 Accordingly, we grant the applicant leave to withdraw those abandonments, grant her leave to appeal against conviction and sentence and, treating this hearing as the appeal, we allow the appeal, set aside the conviction for trafficking in dangerous drugs, and substitute therefor a conviction for possession of 113 grammes of methamphetamine hydrochloride. As for sentence, we are in the unusual position that section 54A of the Dangerous Drugs Ordinance requires us to consider a report of the Commissioner for Correctional Services as to the applicant's suitability for cure in an addition treatment centre. In the circumstances we have described, that is somewhat artificial; yet we would otherwise have no power to substitute a term of imprisonment. Given the quantity of drugs in respect of which the applicant was in possession and the term already served, such a substitution is inevitable. Still, there is no choice but to call for a report. Accordingly, we adjourn the issue of sentence to 20 March by which date we expect to have the report under section 54A of the Ordinance. The applicant is remanded in custody to that date.