THE QUEEN v. FUNG SIU PING

HC Case No. 295 of 1996

HEADNOTE

Application for discharge of accused - girlfriend living at same address as trafficker in drugs - whether permitting or suffering premises to be used for trafficking in or storage of drugs resulting from girlfriend's knowledge of drugs in flat - passive presence - insufficient evidence to amount to permitting or suffering.

Attorney General's chambers have duty to filter out technical offences which in the public interest are too trivial for prosecution - nominal sentence likely to be imposed following High Court trial.

HC Case No. 295 of 1996

IN THE HIGH COURT OF HONG KONG

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R U L I N G

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1. The defendant was committed for trial in the High Court from North Kowloon Magistrates' Court on 11 September 1996.

2. The indictment contained a single charge. The statement of offence alleges Occupier permitting or suffering premises to be used for unlawful trafficking in or storage of dangerous drugs, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The particulars given are that the defendant, on the 2nd day of May, 1996 at Kowloon, being the occupier of premises, namely Block B, 4th Floor, 66 Fuk Wing Street, Sham Shui Po, Kowloon, permitted or suffered the said premises to be used by one LI Chi-to for the unlawful trafficking in or storage of dangerous drugs, namely 55.16 grammes of cannabis and 583.04 grammes of crystalline solid containing 569.34 grammes of methamphetamine hydrochloride. Clearly this is a very grave charge on the face of it as the quantity of dangerous drugs relates to over half a kilo of Ice.

3. Section 37(1) of the Dangerous Drugs Ordinance, Cap. 134 reads as follows:

"No person shall (a) being the owner, tenant, occupier or person in charge of any place or premises, permit or suffer such place or premises or any part thereof to be opened, kept or used ...... for unlawful trafficking in or storage of a dangerous drug......"

4. Subsection (2) sets out the penalties which, on conviction, will lead to a maximum fine of $5 million or imprisonment of 15 years.

5. The facts could not be more straightforward. On 2 May 1996, police raided the flat in Sham Shui Po where the defendant was living with her boyfriend, SZETO Wai-tong.

6. The police found the defendant sitting on a bed in the bedroom. They then conducted a search of the premises and found a shoe box in the sitting room containing the dangerous drugs referred to in the indictment. The defendant was arrested for possession of those drugs.

7. In the light of what she told the police later, it is not surprising that the allegation of possession was not maintained. Although she admitted having knowledge of the drugs, she could not be proved to have had any control over them. In a post-record of the arrest she said to the police, "Ah Sir, I understand but the Ice belonged to my friend. It has nothing to do with me. I know nothing at all." In a later interview that day she was asked 31 questions, all of which she answered, which were relevant to this allegation. As it is agreed that those answers provide the entirety of the case against her, I will read them out.

"Q(2) You said the ice belonged to your friend. What was his name called?

A(2) It might belong to my boyfriend SZETO Wai-tong or that fat boy but I was not sure.

Q(3) Who was that fat boy as mentioned by you? What was his name called?

A(3) I did not know his full name but I can recognise him. He was the one who has been brought back to Shamshuipo Police Station together with me.

Q(4) How long have you known that fat boy?

A(4) About 2 months.

Q(5) How did you come to know that fat boy?

A(5) He was introduced to me through my boyfriend SZETO Wai-tong.

Q(6) How long have you known SZETO Wai-tong?

A(6) About 7 months. Through introduction of ordinary friends.

Q(7) Where did you live?

A(7) I lived at Room 324, Central Main Block, North Point Estate together with (my) family which include parents, 2 elder sisters and one elder brother.

Q(8) When did you move out to live elsewhere?

A(8) In early March this year, I moved together with SZETO Wai-tong to the rented unit at Number 66, Fuk Wing Street, 4/F, Flat B, Shamshuipo.

Q(9) Why did you move out to live together with SZETO Wai-tong?

A(9) As (I) felt that the affection towards each other of us was stable, so (we) lived together.

Q(10) What about the job of SZETO Wai-tong?

A(10) A goods vehicle driver.

Q(11) Well, you said you were not sure if the ice belonged to SZETO Wai-tong or the fat boy, why were you not sure?

A(11) As SZETO Wai-tong had told me (he) stored it for friend.

Q(12) As SZETO Wai-tong had told you that (he) stored it for friend, in what way involved is that fat boy?

A(12) As I have seen SZETO Wai-tong and that fat boy packing the ice inside that unit.

Q(13) How did SZETO Wai-tong and that fat boy pack the ice?

A(13) As I have seen them pack the ice in one small packet.

Q(14) When did you see them pack the ice?

A(14) I have seen twice. Once in last week and the second time was prior to the arrival of the police this morning.

Q(15) Who brought the dangerous drug ice and cannabis to the house that you lived?

A(15) I don't know.

Q(16) When did you see the ice and cannabis put inside the house?

A(16) At the end of last month.

Q(17) At the time you found the ice and cannabis put at your home, did you ask SZETO Wai-tong what they were?

A(17) Yes, he told me it was ice and (he) only stored it for friend. Concerning the cannabis, I did not ask (him) as I came to know it in the advertisement on the television.

Q(18) Why did you allow the ice and cannabis to be stored at your home?

A(18) In fact, I have all along forbidden him to store the ice and cannabis at home but SZETO Wai-tong said (he) only stored (them) for that fat boy. According to the best of my knowledge, that fat boy would come up to take away the ice at times.

Q(19) How many people have the keys to your home?

A(19) Only SZETO Wai-tong and I, the 2 of us, have keys.

Q(20) How did that fat boy get into your home to take away the ice?

A(20) Normally, he would inform SZETO Wai-tong in advance when (he) would come to get it.

Q(21) You said that fat boy would come up to take away the ice at times, at what interval would (he) come?

A(21) I have seen (him) several times but (he) would not come up to get it at a fixed time. As I have to go to work sometimes, so (I) was not very clear.

Q(22) Well, to whom did that piece of paper written with Chinese, English and numerals and cash of $4,600 inside the box belong?

A(22) I did not know as I have not seen them. I have not even opened it to have a look.

Q(23) Have you seen that fat boy or SZETO Wai-tong consume ice at the unit rented by you?

A(23) I haven't seen.

Q(24) How did you find the premises you rented?"

8. I digress to say that that was a question which is not based on any answer that she had previously given. These premises were rented not by her but by her boyfriend. The answer to the question that was asked was this:

"A(24) Through introduction of an estate agency in the street.

Q(25) Whose name did you use to rent that unit?

A(25) SZETO Wai-tong.

Q(26) Who was responsible for paying the rent?

A(26) SZETO Wai-tong and I each paid half.

Q(27) How much was the rent?

A(27) $3,000 a month.

Q(28) How did you pay the rent?

A(28) It had been paid through bank transfer but it happened that the landlord was met last month so there was no bank transfer as the rent was given to the landlord by hand.

Q(29) How can the landlord be contacted and what is the name of the landlord?

A(29) I cannot remember clearly but the tenancy agreement has the name and telephone number of the landlord on it.

Q(30) Well, the police have seized a white electronic scale at your home, did you know what it was used for?

A(30) I only know I have seen that fat boy and SZETO Wai-tong use it to weigh the ice.

Q(31) Did you know what ice was?

A(31) (I) knew it was a (kind) of dangerous drug.

Q(32) Have you ever consumed ice or cannabis?

A(32) Never."

9. In summary, therefore, taking all of the evidence at its highest, the defendant admitted to a knowledge that ice and cannabis were present in the flat because she had seen them there, and her boyfriend had said he was storing them on behalf of a friend. She also knew that the so-called friend sometimes came to the flat to take away some of the drugs.

10. For her part, the defendant tried to forbid her boyfriend storing the drugs in the flat and it appears as though she met with no success in her request. Other than that, her role in this has been entirely passive.

11. Even assuming that the case was a valid case in law, the decision to mount a prosecution seems remarkable. The sentence for a passive role such as this in any sort of crime, assuming it amounts to a crime in the first place, can only be a nominal one because the offence is technical. It would be quite different if the defendant had done some positive act to permit or suffer the storage of dangerous drugs or trafficking in them. For example, it would be quite different if the defendant had deliberately rented the flat using her own name so that her boyfriend's details would not be shown anywhere in the tenancy records. Equally, she would be guilty if she, rather than her boyfriend, had been letting people into the house to facilitate the collection of drugs from the house. But that is not the case here. The defendant was a 20 year old waitress of previous good character, who had moved in with her boyfriend and had tried to persuade him from keeping drugs on the premises.

12. Yesterday, when the trial was due to begin, I gave the prosecution the opportunity of considering whether or not they wished to pursue their allegation. Mr Walters was given firm instructions to proceed. I then invited the defence to make an application under section 16 of the Criminal Procedure Ordinance, Cap. 221, for the discharge of the accused. The prosecution waived their right to 14 days' notice of the application but they understandably requested that they be given until today to prepare their submission in reply. Mr CHENG Huan, Q.C., for the defence argued that on the facts of this case the defendant was not even proved to have been an "occupier" of the premises. He cited the cases which are referred to in Archbold, 1997 Edition at paragraph 26-86. I am quite satisfied that, for the purposes of this allegation, she was an occupier. She contributed half the rent and was in the position of being a co-tenant.

13. However, this is not an offence of strict or absolute liability. Some positive or wilful act or omission must be proved against an accused person before liability can be established for this crime. Merely to know what her boyfriend was doing and to say nothing cannot be enough. In fact, she did speak and that was to try to dissuade her boyfriend from doing what he was doing. Her words, that were obviously ignored, merely serve to illustrate the absurdity of this prosecution. There is little or no moral blame which attaches to what the defendant has done, even when the case is put at its very highest against her.

14. If there is no moral blame, in a case which is not one of strict liability, then in common sense the charge will probably be fundamentally flawed. Did the prosecution expect that she would receive more than a merely nominal sentence? If not, why then do they pursue their allegation?

15. I am satisfied in this case that the charge is bad. The prosecution is left having to say that when the defendant knew what her boyfriend was doing, she was morally obligated to report it to the authorities or to destroy the drugs or to leave him and the premises. They have been left saying that her failure to do one of those three things makes her guilty of the criminal offence which is charged. A simple statement of this position demonstrates the absurdity of the allegation.

16. On that footing, every wife or girlfriend of every drug trafficker who shares the accommodation where drugs are kept and who merely knows that the drugs are on the premises would be guilty of this offence, guilty merely because they fail to report it, fail to destroy it or fail to leave their partner or husband.

17. It is the prosecution's case against this defendant, based on what she said, that she did precisely nothing. She stood by in a passive way, knowing what her boyfriend was doing and disapproving of it and unable, apparently, to stop him from doing it. That is not, nor could it ever be, a proper basis for a prosecution of this kind. I have no hesitation in rejecting the argument that a case of any sort has been established on these papers against the defendant and so I shall allow the application that has been made for the discharge of this defendant.

18. This case illustrates a further matter which gives rise to concern.

19. When the police make a criminal charge against an individual, the Attorney-General's Chambers may or may not consider it appropriate to proceed with the charge. Necessarily there will be times when a decision is made not to prosecute on the ground that it is not in the public interest to do so. One such reason is that the case is regarded as being too trivial to prosecute.

20. Making all allowances for the prosecution having failed to appreciate that this case was fundamentally misconceived, because that is an understandable mistake, it is somewhat alarming that the case then missed the next filter in the system, which might well have been expected to identify this case as one which was inappropriate for trial. Are we really going to see girlfriends and wives accused of crimes which amount to failing to inform on their partner or failing to leave their partner in circumstances similar to those which have arisen in this case. The law aims to be realistic, and this is a wholly unrealistic proposition.

21. We are not dealing here with treason or murder, and put at its very highest this allegation amounted to a technicality, making the case so trivial that it was not worth spending public funds on prosecuting it. The sentence at the end of the day would have been entirely nominal if a case had been made out on the footing suggested by the prosecution. For that, it would have needed to be a crime of strict liability.

22. As it is, this case has gone from the Magistrates' Court to the High Court. The arguments have so far occupied two days and, if the case had gone to trial with a jury, would probably have occupied a further four days.

23. It is difficult to estimate the cost of these proceedings and unless I hear argument to the contrary, I can see no reason why the defendant should have to bear her own costs when she should never have been prosecuted in the first place. The unfortunate consequence is that the taxpayer will have to bear the costs instead.