HKSAR v. POOWONGSA WORACHET AND ANOTHER

CACC 218/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 2001

(ON APPEAL FROM HCCC 350 OF 2000)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 15 June 2001, Kaha Tanas (A2) aged 23, was found guilty, following a trial in the Court of First Instance before Mr Recorder Lunn, SC, and a jury of one count of trafficking in 2,011 tablets and some tablet fragments, containing a total of 42.03 grammes of methamphetamine hydrochloride. He was sentenced on the same day to eight years' imprisonment.

2. Three days later, on 18 June 2001, Poowongsa Worachet (A1), aged 25, pleaded guilty before the same recorder to a single count of trafficking in 990 tablets and some tablet fragments, containing a total of 20.07 grammes of methamphetamine hydrochloride for which he was sentenced to five years and four months' imprisonment.

3. The Applicants originally appeared on a single indictment but after each of them had entered pleas of not guilty to the individual counts they respectively faced when first arraigned, the recorder ordered separate trials.

4. A2 now seeks leave, in person, to appeal against conviction. In addition, A1 and A2 seek leave to appeal against sentence and for this purpose, legal aid having been granted to both of them, they are each represented by Miss Lily Yew who also appeared for them in the court below.

A2's application on conviction

5. A2 was arrested on 5 August 2000 in the Arrivals Hall at the airport, having travelled to Hong Kong from Bangkok. When his wallet was searched, the dangerous drugs, valued at approximately $201,100 (or about $100 for each tablet) were discovered inside.

6. A2 gave evidence at trial claiming that, while on a home visit to Thailand, he had been asked by a man he had met in the course of a bus journey to bring the tablets to Hong Kong. He was given 7,300 Thai baht as a reward for doing so, with the promise of a further 30,000 baht on delivery of them. A2 said that he thought the tablets were simply a type of medicine.

7. The defence also called expert evidence from a professor of clinical pharmacology, the late Dr Julian Critchley, to speak about the use and abuse of methamphetamine generally and to say that tablets of the kind A2 had brought from Thailand into Hong Kong were available for purchase at shops in Thailand.

8. In his homemade grounds of appeal, A2 complained that the tablets he had imported to Hong Kong not only looked like medicine but that tablets of this kind could be bought in dispensaries all over the world including some in Europe. In those circumstances, he contended that it was unfair to him that the defence case had not been believed. In court today, A2 has added nothing further.

9. Dealing with the points made by A2 in his written grounds, Dr Critchley, in the course of his evidence, said the tablet form of methamphetamine hydrochloride (which he specifically said should not be referred to as 'ice') was what he described as a "pep pill" because of the far lower absorption rate when compared to the inhalation or injection of this drug in its more usual powder or crystalline form which is commonly referred to as 'ice'.

10. Dr Critchley said that in Britain and in America, the tablet form of the drug was still available on prescription. In some other parts of the world, including Thailand, these tablets were, he understood from various academics in Thailand, available in the shops without any prescription as a "stay-awake" agent or for "anti-obesity" purposes.

11. The evidence given by Dr Critchley for the defence, and also by Senior Inspector Tam for the prosecution, did not deal directly with the main issue in the case, namely knowledge. This was accurately summarised by the recorder when he said that the jury had to determine whether A2 knew that he was in possession of dangerous drugs when he entered Hong Kong. On this crucial aspect of the case, the recorder referred to the presumptions which arose by virtue of section 47 of the Dangerous Drugs Ordinance Cap. 134 and, having done so, he directed the jury in these terms:

"It is for the defendant to prove, either by his own evidence or by pointing to other evidence, that he did not have that knowledge. But, and this is of vital importance, the burden on the defendant is not that he makes you sure that he did not know. All he needs to show is that it is more probable, more likely than not, that he did not know. If he has done that by pointing to other evidence, or by his own evidence, or by a combination of both, if he has done that so you think it is more likely than not that he did not know the nature of the drugs, then the prosecution has failed to prove its case and you will find the defendant not guilty." (Appeal bundle pp. 14-15)

12. By its verdict, the jury plainly rejected the Applicant's claim of innocent possession.

13. The summing up as a whole was both comprehensive and balanced. The jury was reminded of the matters on which the prosecution relied and they also had highlighted for their benefit the features of the case which were helpful to the defence. There were no misdirections in law and there were no grounds on which we should interfere with this verdict.

14. Accordingly, this application is dismissed.

Sentence

15. Turning to the sentences which were imposed on these Applicants, it was submitted by Miss Yew, on behalf of both Applicants, that the recorder had erred in his approach to sentence by "failing to make a distinction between the effect on abusers of 'ice' in (the) pure crystalline form and (abusers of methamphetamine in the) oral tablet form" arising from the evidence given by Dr Critchley.

16. An additional point taken on behalf of A1 was that insufficient weight had been given to his previous good character by a failure to give more than the usual one-third discount for his plea of guilty.

17. With reference to the last point, as we have said many times before, unless there is evidence of positive good character, such as unpaid work in the community as opposed merely to the absence of previous convictions, the one-third discount is usually to be regarded as the high watermark of the discount to be given to a defendant who has entered a timely plea of guilty. However, as we have said already, A1's plea was not a timely one. He pleaded not guilty on arraignment, and it was not until A2 had been found guilty that A1 eventually admitted his guilt.

18. The facts of A2's case, which we have summarised already, revealed that he, like A1, had no previous convictions, but A2 had no entitlement to any discount from an appropriate starting point as he had shown no remorse. The recorder in A2's case took a nine-year starting point, but he reduced this to eight years saying:

"In the light of your previous good character, I reduce that sentence by one year." (Appeal bundle p. 41)

19. On any view, this was extraordinarily generous. In serious drugs cases, as the court has often repeated, the lack of previous convictions carries very little weight. However, this brings us back to the disposal of A1's case three days later when the recorder, again somewhat generously, stated that despite A1's late plea, he would nevertheless give him full credit for his plea. Perhaps the recorder might have made his intentions plainer if he had said that he was giving credit for the plea because the expression "full credit" might, certainly to a lawyer, have implied a one third discount. However, the judge did make plain what his intentions were because elsewhere in his sentencing remarks he said:

"You have pleaded guilty, but you've only done so on re-arraignment, having pleaded not guilty at the outset." (Appeal bundle p. 46)

He also said:

"Turning to personal matters, I take into account that you are a 25-year-old man and that you haven't been convicted of any criminal offence before." (Appeal bundle p. 46)

And again, repeating what he had said earlier, he went on to say:

"I give you full discount for your plea of guilty and I take into account the fact that you haven't been convicted of any criminal offence previously, and I reduce your sentence by one-third." (Appeal bundle p. 47)

20. In our judgment, A1 was treated extremely generously. The judge not only gave him credit for his lack of previous convictions which counted for little in a case of this seriousness but also, seemingly, gave him large discount for his late plea. In this last respect, the recorder was right to have given some discount to reflect the fact that there had been a plea, even though this had been entered at a late stage.

21. As to the main ground of appeal, the recorder said that he regarded the importation of these dangerous drugs as an aggravating factor. He then applied the guidelines set out in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, taking a starting point of eight years' imprisonment in the case of A1. He then reduced this to five years and four months after discount.

22. Briefly, the facts in A1's case were very closely similar to those in A2's case. He had arrived on the same flight from Bangkok as A2, on 5 August 2000. The 990 tablets in his possession were worth about $99,000. He told police officers that he did not know that such pills were illegal in Hong Kong, but he made it plain in later answers that he had brought them to Hong Kong in order to profit from their sale.

23. In the course of her mitigation before the recorder, Miss Yew reminded the recorder of the evidence given by Dr Critchley. The recorder was aware of that evidence and he referred to it when passing sentence. He said:

"(Dr Critchley) testified that the drug could be inhaled, injected or taken orally. He said that when injected or inhaled, the effect, which he called 'the rush', was an intense sensation, different in character from that obtained by the drug taken orally.

He testified that the crystalline powder form of the drug, 'ice', was the most effective way of inhaling or injecting the drug, being almost pure in content. The tablets in which you trafficked are not in that form or purity. However, Dr Critchley did accept in his report that the tablets can be ground up and then injected. Also, he testified that the crystalline form of the drug could be obtained by extraction from the tablet, although he said that the process was relatively complicated, requiring both equipment and knowledge of some chemistry. Notwithstanding Dr Critchley's evidence, I am satisfied that the guidelines as to sentence laid down in that case of AG v Ching Kwok-hung applied to the substance itself, not its form, and I propose to proceed to sentence on that basis." (Appeal bundle pp. 40-41)

24. We are satisfied that the recorder's approach was entirely appropriate. Accordingly, these applications in relation to sentence are dismissed.