HKSAR v. CHU KIN SHAN CHRISTOPHER

CACC 285/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 285 OF 2013

(ON APPEAL FROM DCCC NO 497 OF 2013)

_______________

___________________________________

R E A S O N S   F O R   J U D G M E N T

___________________________________

Hon Poon J (giving Judgment of the Court) :

INTRODUCTION

1. On 8 August 2013, the applicant appeared before HH Judge Woodcock charged with one count of trafficking unlawfully in dangerous drugs, namely, 34.32 grams of a powder containing 27.17 grams of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the charge but pleaded guilty to simple possession. After trial, the learned Judge convicted the applicant of the charge and sentenced him to 4 years and 3 months imprisonment.

2. The applicant sought leave to appeal against conviction.  On 20 November 2014, after hearing counsel, we gave the applicant leave to appeal against conviction and, treating the application as the hearing of appeal, allowed the appeal and quashed the conviction.  We further ordered a retrial on a fresh charge and gave consequential directions including bail, which was not opposed.  We now hand down the reasons for our judgment.

THE PROSECUTION CASE

3. At about 7:48 pm on 21 March 2013, the applicant was stopped outside a shopping centre in Tuen Mun by PC58430.  Upon search, PC58340 found 3 transparent re-sealable plastic bags containing the ketamine inside the applicant’s left front trousers’ pocket.  He also had in his possession two mobile phones and HK$897.40.  PC58430 then arrested the applicant for the offence of trafficking in a dangerous drug.  Under caution, the applicant said he bought the ketamine for his own consumption and he did not sell it to others.  The street value of the ketamine was HK$4,084.00.  These facts were not disputed by the applicant.

4. The only witness called by the prosecution was PC58430.  He gave evidence of the stop, search and finding of the drugs on the applicant’s person resulting in his arrest.

5. PC58430 also gave evidence of a video recorded interview of the applicant between 23:47 on 21 March 2013 and 00:09 on 22 March 2013, the voluntariness of which was challenged by the applicant.  The applicant also gave evidence on the special issue.  The Judge was satisfied about the voluntary nature of the record of interview.  She then ruled it admissible.

DEFENCE CASE

6. The applicant did not give evidence on the general issue.

7. He called his mother to give evidence on his behalf, which essentially dealt with his financial means to buy the ketamine.  She said the applicant was discharged from Hei Ling Chau Drug Addiction Treatment Centre (“DATC”) about 2 weeks before the arrest.  He was paid $600.00 for work done at the DATC.  She did not want to give the applicant money to buy drugs. She and her husband each gave the applicant $1,000.00 to the applicant upon his release from the DATC.  On 21 March 2013, that is the date of offence and arrest, she gave the applicant another $200.00 for travelling expenses.  She also gave the applicant $600.00 on the same day to the applicant for the application for renewal of his Home Visit Permit.  The applicant missed the appointment and therefore still had $800.00 on him when being arrested later in the evening.

VERDICT

8. The Judge first identified the sole issue being whether the dangerous drug was for unlawful trafficking or for the applicant’s own consumption.  She then said :

“ 28. The prosecution rely on the quantity of drugs found on the defendant on the street, the packaging of the amount of ketamine, the fact he told the police he was unemployed and by inference unable to finance a drug habit. In the video recorded interview he told the police he took ketamine two to three times a week and on each occasion he would spend two to three hundred dollars buying 3 to 4 grammes of ketamine. On this occasion he bought this amount of dangerous drugs to obtain a discount. He paid $1,800.00, for drugs worth $4,084.00 with money his family had given him. This is a large discount he obtained from a stranger who approached him in Tuen Mun.

…

30. A factor that could indicate possession for self‑consumption would be an ability to finance a drug addiction habit; a habit that should also be substantiated.

31. The video recorded interview records the defendant telling the police he was unemployed; there is no evidence to suggest otherwise. He says he paid $1,800.00 from the money he obtained from family. His mother gave evidence he was given $2,000.00 upon his release from [the DATC] to add to his $600.00 salary he received. Her evidence was that he had some $2,600.00 two weeks prior to his arrest. At the same time she said she limited his money so he could not buy dangerous drugs. Her evidence is non-sensical. I am sure it was an attempt to try and explain how he could buy dangerous drugs in bulk as alleged. For someone with no income he had to give an explanation how he was able to buy dangerous drugs for his own consumption, and it was his mother who provided such an explanation. However, it is a bare assertion. I doubt a mother who says she knew she had to limit her son’s cash supply to prevent him buying drugs would provide him with sufficient cash to do just that.

32. There is no direct evidence before the court the defendant was a drug addict at the time of his arrest. I have no reason not to believe he was recently released from a drug addiction treatment centre order, but that proves he had a drug addiction problem before he was sent there. The fact remains that I have no evidence before me that indicates he was a drug addict when arrested and would therefore purchase ketamine to feed his habit. The fact he is recalled under a supervision order to [the DATC] is not direct evidence of addiction.

33. I note his video recorder interview refers to taking ketamine two to three times a week. According to what he told the police, he paid between 400 and 900 dollars per week for between 6 to 12 grammes a week. At one time he would buy 3 to 4 grammes to inhale. Here he is in possession of 34.32 grammes of ketamine, that would provide him with between 8 to 11 doses approximately. At two to three times a week, that would last him about five weeks, at most.

34. However, I doubt the defendant would inhale 3 to 4 grammes a time. The court can take judicial notice of the average consumption of a drug addict and expert evidence as to drug usage. No expert was called in this case, but I referred myself to the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There it was accepted that recreational doses ranged from 10 to 250 milligrammes when taken nasally. A Professor K Lee gave expert evidence of ketamine drug addicts’ habits and said further at paragraph 64 of that authority that experienced users who have developed tolerance can use up to a gramme or more of ketamine during the course of a single evening. To inhale 3 to 4 grammes regularly is hard to believe.

35. I rejected what the defendant told the police as far as his drug habit is concerned and doubt his financial ability to buy in bulk. I reject his allegation he possessed the ketamine for self-consumption.

…

37. The only remaining issue is whether on the prosecution’s evidence the only reasonable inference that can be drawn is that the defendant possessed the ketamine for the purpose of unlawful trafficking.

38. I found no evidence the defendant could afford to pay for a significant amount of ketamine even if heavily discounted.

39. I found no evidence he was a drug addict at the time of arrest. I rejected the defendant’s attempt to convince the police he had a habit that required between 6 to 12 grammes a week over two to three occasions.

40.  I rejected the evidence he bought the ketamine for himself at 6 pm but did not take it straight home to Tung Chung from Tuen Mun.  Instead he went to have something to eat and was arrested nearly two hours after buying the ketamine. I do not believe he would take that risk instead of going straight home.”

9. The Judge was accordingly satisfied that the only inference to be drawn was that the applicant possessed the ketamine for unlawful trafficking and that the prosecution had proved the charge beyond reasonable doubt.  She then convicted the applicant as charged.

DISCUSSION

10. As rightly identified by the Judge, the only issue is whether the applicant was in possession of the dangerous drugs for self‑consumption or unlawful trafficking.  As there was no direct evidence on trafficking, the question is whether the circumstantial evidence was sufficient enough to entitle the Judge to draw the irresistible inference, as she did, that the applicant had the drugs for unlawful trafficking.

11. Pivotal to the Judge’s evaluation and assessment of the relevant circumstantial evidence is her finding that there was no evidence that the applicant was at the time of the offence a drug addict.  Thus she said in §32 of her verdict :

“ The fact remains that I have no evidence before me that indicates he was a drug addict when arrested and would therefore purchase ketamine to feed his habit.”

12. While it is correct for the Judge to say that there was no direct evidence that the applicant was a drug addict at the time of his arrest as the applicant elected not to give evidence, there was some indirect evidence indicating that he was at the time a drug addict :

(1)  Under caution, his immediate response was that he bought the ketamine for his own consumption.

(2)  In the record of interview, he said he had been “smoking” dangerous drugs for 5 years.

(3)  He was recalled under a supervision order to the DATC.

13. In light of such indirect evidence, the Judge, with respect, erred when she said that there was no evidence that the applicant was a drug addict at the time of the offence.

14. Mr Lo, Senior Assistant Director of Public Prosecutions, for the respondent, readily accepted that the Judge did make the error.  But he submitted that it did not amount to a material irregularity because of some other strong evidence.  He relied on :

(1)  the quantity of the ketamine;

(2)  the packaging of the ketamine;

(3)  the circumstances of the purchase of the ketamine;

(4)  the applicant’s financial inability to purchase the ketamine; and

(5)  the applicant’s movement after purchase of the ketamine.

15. We disagree.  The finding that there was no evidence that the applicant was a drug addict was central to the Judge’s analysis of all the other evidence.  The error made by the Judge was so fundamental that it rendered her assessment of all the other circumstantial evidence and findings based on such assessment doubtful.  The error was indeed a material irregularity.

16. Mr Lo initially accepted that if the error amounted to a material irregularity, the proviso would not apply.  After some probing from us, he changed his position and argued that because of the same evidence as enumerated above, the proviso should apply.  Again we disagree. Since the error has cast doubt on the correctness of the Judges’ findings based on the other circumstantial evidence, we are satisfied that the proviso cannot be invoked.  The conviction was unsafe and had to be quashed.

17. We next consider the question of retrial.  Mr Allan, for the applicant, submitted that it is not an appropriate case to order a retrial.  He asked us to substitute a conviction of simple possession.  We disagree.  The offence is a serious one.  The quantity of the ketamine is not unsubstantial.  There is sufficient evidence capable of supporting a conviction of unlawful trafficking.  So, we ordered a retrial.

CONCLUSION

18. For the above reasons, we made the orders we did in disposing of the application for leave to appeal against conviction.