HKSAR v. DINH KA YAN, GIGI

CACC 122/2021

[2022] HKCA 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 122 OF 2021

(ON APPEAL FROM HCCC 398 OF 2019)

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J U D G M E N T

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1.  On 22 July 2020, following a trial before Campbell-Moffat J (the Judge) and a jury, the applicant was convicted of trafficking in a dangerous drug, consisting of 27.89 grammes of a crystalline solid containing 27.58 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.[1]

2.  Almost a year later on 2 June 2021, the applicant was sentenced to 8 years’ imprisonment. It appears the Judge received submissions on the question as to what extent, if at all, she could sentence the applicant contrary to the jury’s verdict.

3.  On 11 June 2021, the applicant filed a notice of application for leave to appeal against conviction and sentence, without specifying any grounds of appeal.

4.  On 25 August 2021, the applicant was refused legal aid. On 2 December 2021, the Bar Free Legal Service Scheme assigned Mr Leung Chun Keung, who was trial counsel for the applicant, and Mr Alvin C H Cheng to represent the applicant in her leave application.

5.  On 11 January 2022, Mr Leung and Mr Cheng filed perfected grounds of appeal against conviction and sentence in the following terms:

“Grounds of Appeal against Conviction:

Ground 1

The Judge erred, in the circumstances of this case, as follows:

i. failed to correct the [prosecution] submission that the [applicant] would be guilty if ‘only a small part of the large bag’ was for sharing or selling to other people;

ii. erred in directing the Jury that ‘so long as (the [applicant]) is not keeping (the drugs) to herself, entirely to herself, then those activities would be trafficking’; and

iii. failed to direct the Jury that it would not be sufficient to convict if they are satisfied only that the small bag would be shared.

Ground 2

The evidence of the case is insufficient for the Jury to draw an only reasonable inference that the drugs found on the [applicant] were for trafficking.

Ground 3

In the circumstances of the case, the conviction is unsafe and unsatisfactory.

Grounds of Appeal against Sentence:

Ground 1

In the circumstances of the case, having in mind how the Jury was directed on ‘trafficking’, it is possible that the Jury might have convicted the [applicant] on the ground that she intended to share the drugs with her boyfriend or that the drugs were not entirely for her self-consumption. The Learned Judge failed to reflect these in the sentence.

Ground 2

In the circumstances of the case, 8 years’ imprisonment is manifestly excessive.”

6.  A further application for legal aid was refused on 7 February 2022.

The case at trial

7.  It was not in dispute that in the early hours of 13 April 2019, the applicant and another Vietnamese woman were stopped by police officers outside 530 Nathan Road, Kowloon. The applicant was searched by the police officers who found inside the left pocket of her denim jacket two transparent re-sealable plastic bags, one large bag containing 26.8 grammes of Ice and another smaller bag containing 0.78 grammes of Ice. They also found in the right pocket of her jacket cash in the sum of HK$6,000 and inside her handbag HK$825 cash, a small quantity of foreign currency, and a dual SIM card telephone.

8.  The applicant was arrested and cautioned and in response she said she bought the Ice for her own consumption.

9.  It was also not in dispute that the applicant was a drug addict. In fact, her addiction to drugs, including Ice, formed a significant part of the defence case in support of her contention that the Ice found in her possession was for her own consumption. It was an admitted fact that she tested positive for Ice when she was taken into custody.

10.  In a subsequent video recorded interview, which was adduced into evidence by agreement between the parties, the applicant stated that she was unemployed; she was in receipt of Comprehensive Social Security Assistance (CSSA) of $8,000 per month; she had no other income, and she lived in a public housing flat in Tsing Yi. The social welfare benefits she received were for herself and her three children.

11.  The applicant’s home was searched by the police who did not find anything illicit inside the premises.

12.  The applicant gave evidence in her defence. She testified that all the drugs found in her possession were for her own consumption, including the smaller bag of drugs. She explained that she purchased an ounce of Ice from a person called Zacs, a friend of her boyfriend. Zacs and her boyfriend lived in Chungking Mansions. She said she bought this quantity of Ice because they were of ‘good quality’ and she got them at a ‘good price’ of $5,600. She also explained that she had the smaller bag because she had asked that a small quantity be separated from the ounce she had purchased so that she could consume it straight away. She testified that she never shared drugs with her boyfriend but would consume drugs together with him. At the time of her arrest, she was going to consume drugs with her boyfriend at Chungking Mansions but she did not want him to know about the drugs in the larger bag. After she had consumed the drugs she intended to go home.

13.  The applicant claimed she had the financial means to purchase drugs. She said that she had funds hidden inside her home. She had received $70,000 inheritance and about $20,000 per month from various sources, including social welfare benefits. She also claimed that she was addicted to Ice and consumed it daily. The cash she had was kept in a safe in a wardrobe in her living room and the drugs together with an Ice bottle were in a double cupboard in the kitchen, which the police had not searched. The police officers testified they did searched the applicant’s home thoroughly. The prosecution made an issue that if she was a drug addict as she claimed why did the police not find anything at her house that evidenced her addiction?

14.  The applicant was extensively cross-examined that she was not telling the truth about the drugs being for her own consumption and the source of the funds she had at her disposal. Other than alleging that she was trafficking in the drugs, the prosecution seems to have presented its case on several bases.

15.  Prosecuting counsel in his closing speech seems to have given the jury several options on which to convict the applicant for trafficking, which the Judge described as a range of possibilities.[2] They were:

(1) All the drugs were for trafficking by the applicant, and none were for the applicant’s personal consumption.[3]

(2) Part of the drugs was for trafficking by the applicant and some were for the applicant’s personal consumption.[4]

(3) Part of the drugs was for sharing by the applicant, that is for the purposes of “social trafficking”.[5]

16.  The position of the prosecution was articulated by the Judge to the jury as follows:[6]

“Now, of course, Mr McGowan’s case is this. He cannot tell you exactly what she was going to do with it. There are a range of options. …

And that range; at the moment I am just giving you the possibilities here at the moment; that range could be, ‘I bought an ounce at a good rate in order to sell it on ultimately at a profit.’ That is a range, and if you are going to sell it on at a profit, from what I have said earlier, that would be trafficking. Yes?

‘I have got an ounce from which I have got a little bag and I am going to keep some of it to consume myself and sell some of it on.’ That is trafficking, from what I have said. ‘I have taken that ounce out, I am going to use that ounce myself, but also I am going to use that ounce’ -- not the ounce, sorry. The gramme, the 0.79, ‘I am going to smoke it with my boyfriend.’ So this part that I have bought, if she did indeed buy it, and shares it with the boyfriend, that would be trafficking because she is giving away, even if it is not commercial, it is trafficking.

‘I am going to -- I am lucky I have got money. I have savings’, or whatever. ‘I bought it at a good rate, I am just going to, whenever I use it, share it with the odd friend, share it with my colleagues. If they want to buy some, they can buy some. If they cannot buy some, I might share it.’ I do not know. This bag that is left could be dealt with in all sorts of different ways.

So long as she is not keeping it to herself, entirely to herself, then those activities would be trafficking. Because any form of dealing in it where another person is involved, is trafficking. Does that help? I think because there is a range here and I need you to understand that there is a range because only you can decide what you are sure about as to what would happen to it when we have gone through the evidence.

But everything from commercial sale to opportunistic sale to sharing with somebody, non-commercially, no money moving, any one of that range in handling a dangerous drug would be trafficking if you did not just use it yourself.

So it is really, you have to decide the possession, etc, because you must have a tick on every single one of those boxes, all four. But it is really, the issue is, was there any form of trafficking here? If there was, what was it and are you sure of it?”

17.  The defence case was that all the drugs were for the applicant’s self-consumption.[7]

Discussion

The appeal against conviction

18.  By Ground 1, Mr Leung complains that the Judge failed to correct prosecuting counsel’s remarks in his closing address that, “even if only a small part of that large bag, larger bag I should say, of drugs was for trafficking, for sharing or selling to other people, then that is possession for the purpose of trafficking and she’d be guilty.”[8]

19.  He contends that because the prosecution had presented its case at various levels of culpability from “all the drugs” were for trafficking; “some of the drugs” were for trafficking; and “only a small part of the drugs” were for trafficking, the Judge should have corrected prosecuting counsel’s impugned remarks. He further contends that this was exacerbated by the Judge’s comments quoted above and that the jury may have impermissibly concluded that the applicant was guilty of trafficking unless they were satisfied that all the drugs were for self-consumption.

20.  Mr Leung complains that the Judge by her directions had lowered the level of proving trafficking by not instructing the jury to be satisfied that all of the drugs were for trafficking. There is no substance to this complaint as it was open to the jury to convict the applicant for trafficking because part or all of the drugs were in her possession for that purpose.

21.  Mr Leung also complains that the Judge in directing the jury that they may convict the applicant if they were satisfied that she would share the small bag of Ice with her boyfriend, there was a risk that the jury may have convicted the applicant if they found she intended to share even a small amount of the Ice in the large bag. Again, it was open to the jury to convict the applicant for trafficking if they found that the applicant intended to share the Ice she had in her possession, whether in the small or large bag, with her boyfriend. He seems to be suggesting that a conviction for trafficking is not sustainable if the jury were to find that the applicant intended to share a small amount of the Ice from the large bag. This argument fails because it is a well-recognised principle that where a part of the drugs referred to in a drug trafficking charge is proved to have been possessed by a defendant for the purposes of trafficking, this will be a sufficient basis for a finding of guilt on a charge of trafficking.

22.  Mr Leung submits that this was a case where the jury should have been instructed to acquit the applicant if they found on her evidence that the drugs were or may be for her personal consumption. The applicant’s defence was that all of the drugs were for her personal consumption and the Judge told the jury that if the defence she put forward was or may be correct then she was entitled to be acquitted.[9] The Judge gave the correct direction.

23.  The complaints under this ground are not reasonably arguable.

24.  By Ground 2, Mr Leung is seeking to reargue the case for the defence. He complains that there was insufficient evidence for the jury to draw the only reasonable inference that the drugs found on the applicant were for trafficking. He questions the evidence in some detail but, by doing so, highlights the case against the applicant on which the jury could convict her of trafficking. There was no issue that she was in possession of the drugs and that she had purchased them. Her ability to purchase the drugs and the cash that she had on her at the time of her arrest and the police not finding any drugs or related paraphernalia at her home, were matters that the jury could take into account in drawing an irresistible inference against her. The Judge correctly directed the jury on inferential reasoning and provided them with appropriate guidance in deciding a circumstantial case against the applicant. This ground is not reasonably arguable.

25.  In light of the foregoing, I am not persuaded that it is reasonably arguable that the conviction was unsafe or unsatisfactory.

The appeal against sentence

26.  I am persuaded that the applicant has a reasonably arguable ground of appeal in respect of her sentence. The complaint by Mr Leung is that given the circumstances of this case and how the prosecution presented it to the jury, it is possible that they convicted the applicant on the ground that “she intended to share the drugs with her boyfriend or that the drugs were not entirely for her self-consumption.” If the prosecution has presented the basis on which the applicant should be convicted of the offence at various levels, and there is no way of knowing which level the jury have convicted the applicant, then the question arises as to whether the applicant is entitled to be sentenced at the level most favourable to her.

27.  Of particular relevance to this ground is the Judge’s comments to the jury about the range of options for trafficking in the case. One of the options she put to the jury as constituting trafficking was where the applicant shared with her boyfriend 0.79 gramme of Ice from the ounce she had purchased. Mr Leung contends that this may have been the basis on which the jury convicted the applicant of the drug trafficking charge.

28.  Ms Grace Chan, for the respondent, argues that when the Judge discussed the range of options or possibilities she was setting out examples for the jury to better understand the concept of trafficking. She submits that the Judge later in her summing-up delineated the prosecution case in respect of the two bags. The prosecution case in respect of the small bag of drugs was that the applicant would consume the drugs herself or share them with her boyfriend.[10] Of the large bag of drugs, the prosecution case was that the applicant was to deal in these drugs by moving them on.[11] The Judge summarised the prosecution case as follows:[12]

“But it still boils down to Mr McGowan saying that from the proven facts, the only reasonable inference that you can draw is, that this lady was not a large consumer of ‘Ice’ at the rate that she says. I think it is fair to say the prosecution accept that she most probably did consume some ‘Ice’ and most probably, given the division of the packets, might have consumed the smaller packet. But the prosecution says that the only reasonable inference to draw is that she would have done so with somebody else, the most obvious person, seeing as she said herself she was going to be with her boyfriend, consuming it with him, or somebody else. But that the rest would not have been for her and it would have been moved on. They do not know how. …”

29.  Ms Chan contends that it is clear from the Judge’s summing-up that the case the jury was to decide on the basis of their conviction was that the applicant purchased the drugs to traffic them and that the small bag she had or may have had for personal consumption or sharing with her boyfriend. She notes that the Judge made an allowance that the small bag of drugs were for self-consumption. The Judge in her reasons were sent said,[13]

“I entirely reject, as did the jury, the suggestion that these drugs were for your own consumption save perhaps for a very small amount which you might have consumed during working hours or with your boyfriend but that amount would have been negligible.”

30.  In accordance with the guidelines in HKSAR v Tam Yi Chun[14] for the quantity of 27.58 grammes of Ice the Judge adopted a starting point of 8 years and 2 months’ imprisonment which she reduced by 2 months for the fact that the applicant possibly possessed part of the 0.78 g for self-consumption. She further explained that she calculated the discount taking into account the latent risk that the applicant would not consume it but would have shared it with her boyfriend or sold it if the opportunity arose.[15]

31.  On the question of self-consumption, I note that the Judge gave a full explanation in her reasons for sentence for the position she took on this issue and why she rejected the suggestion by the applicant that the drugs were for her personal consumption except for the drugs in the small bag.[16]

32.  I should add that in mitigation, Mr Leung submitted that the Judge should deal with the applicant on the basis that the smaller bag was for trafficking by sharing the drugs with her boyfriend and that the larger bag was for self-consumption. He urged the Judge to sentence the applicant on the basis of two charges, one for trafficking in the drugs contained in the smaller bag, and unlawful possession of the drugs in the large bag, relying on HKSAR v Gurung Laxman[17]. The Judge rejected this submission as there was no justification to interpret the jury’s verdict on this basis.

33.  I should point out that the case of Gurung Laxman concerned the Court of Appeal disagreeing with the reasons of a judge alone in drawing an inference of trafficking of a particular quantity of drugs when the only reasonable inference was that the drugs were for self-consumption. The Court in so finding amended the charge sheet on appeal by adding an unlawful possession charge as appropriate.

34.  The issue in respect of this sentence is on what basis was the applicant convicted in order to determine the correct approach in sentencing. This will require making an assessment of the basis on which the jury were directed that they could return a guilty verdict or whether from an assessment of the summing-up as a whole the basis would have been apparent. It may be, as contended by Ms Chan, that the inference of possession for the purpose of trafficking was overwhelming but that is a matter for argument before the Court of Appeal. The issue raised by the applicant is different from the one discussed in HKSAR v Wong Suet Hau and Another[18], which was concerned with two separate and clearly identifiable amounts of drugs, and whether some of the drugs were for self-consumption. The issue here is on what basis the applicant was convicted.[19]

Conclusion

35.  For the reasons given, I refuse the applicant leave to appeal against conviction. However, I am satisfied that the applicant has a reasonably arguable ground to appeal against sentence. I grant her leave to appeal her sentence and an appeal aid certificate to be legally represented in her appeal, under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221.

36.  The applicant is reminded of her right to renew her application for leave to appeal against her conviction to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.