CACC 171 /2020
[2021] HKCA 1651
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 171 OF 2020
(ON APPEAL FROM HCCC NO 494 OF 2014)
________________________
BETWEEN
HKSAR
Respondent
and
Chan Hoi Wing (陳海榮)
Applicant
________________________
Before: Hon Macrae VP in Court
Date of Hearing: 2 November 2021
Date of Judgment: 2 November 2021
____________________
J U D G M E N T
____________________
1. The applicant pleaded not guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and stood trial before D’Almada Remedios J (“the judge”) and a jury. On 29 September 2020, she was convicted and sentenced to 10 years’ imprisonment.
2. The particulars of the count alleged that on 19 October 2012, at the ground floor premises of an address in Fanling (the “premises”), the applicant unlawfully trafficked in 40.43 grammes of a crystalline solid containing 39.92 grammes of methamphetamine hydrochloride (commonly known as “ICE”), 99.94 grammes of a mixture containing 25.41 grammes of heroin hydrochloride, 5 tablets containing 0.03 gramme of methamphetamine and 35 tablets containing 0.46 gramme of midazolam.
3. Having filed Notice of Application for Leave to Appeal (by way of Form XI) on 9 October 2020, she now applies for leave to appeal against both conviction and sentence. In the present application, while the applicant acted in person in respect of conviction, she was represented by Mr Victor Lee of counsel in respect of sentence.
History of the proceedings in the High Court
4. On 14 January 2014, the applicant, who had originally been arraigned with a co-defendant, was convicted and sentenced to 10 years’ imprisonment[1] [2]
5. Almost four years later, on 10 December 2018, the applicant was arrested on another matter and brought before the High Court on 13 December 2018. The retrial in respect of this matter was fixed for hearing from 10 to 18 April 2019 (“the 1st retrial”). On 25 April 2019, the then trial judge discharged the jury, since they were unable to reach a verdict, and ordered another trial (“the 2nd retrial”). The 2nd retrial was fixed for hearing from 5 to 16 December 2019. On 11 December 2019, the jury at the 2nd retrial was discharged and yet another retrial (“the 3rd retrial”) was ordered. On 11 September 2020, the 3rd retrial was fixed to commence on 17 September 2020.
The prosecution case
6. Much of the prosecution case at this, the 3rd retrial, was not disputed. At about 2:30 am on 19 October 2012, in response to an emergency call for assistance from someone by the name of Cheung Ka-lun (“Cheung”), a team of police officers including PC 5266 (“PW1”), PC 4923 (“PW2”) and PC 4115 (“PW3”) arrived in the vicinity of Fu Tei Pai Village for enquiries. At about 4 am on the same day, PW1 knocked on the door of the premises and shouted loudly to make known the presence of police officers[3]
7. At PW1’s request, the applicant took the My Melody bag from her waist and handed it to him. In her presence, the My Melody bag was opened and found to contain 13 packets of dangerous drugs. The Minnie Mouse bag was also discovered to contain 88 re-sealable bags, 7 packets of heroin hydrochloride and 3 foil packs of midazolam. In the same room where the Minnie Mouse bag was located, a pink bag containing packets of heroin hydrochloride and midazolam, as well as two inhaling devices containing traces of methamphetamine, were found. Another inhaling device containing methamphetamine, an electronic scale with a metal dish containing traces of heroin and a pair of scissors were also discovered in the premises. The applicant was then arrested and cautioned, to which she responded, “All the dangerous drugs in the house are mine. It has nothing to do with my girl. The house is rented by my girl. I am just looking for some lunch (I just want to make a living).”
8. At about 5:20 pm on the same day, police officers conducted a further search of the premises with the assistance of a police tracker dog. A plastic wrapping containing 0.52 gramme of ICE was found underneath a tissue box in the same room of the premises where the other dangerous drugs had been found. Under caution in respect of the plastic wrapping, the applicant said, “Ah Sir, the pellet of ICE is also mine”.
9. It was not disputed that the street value of the dangerous drugs seized was about HK$121,933 as at October 2012. The premises had been rented by Law for 2 years from 7 October 2012 at a monthly rent of HK$6,000. The applicant was receiving Comprehensive Social Security Assistance (“CSSA”) of HK$7,453 per month for herself and two children up to 31 May 2012. No mobile telephone was found on either the applicant or Law.
The defence case
10. The applicant elected to testify and called a friend, Yeung Ka-man (“DW2”), as defence witness. The defence case was that the dangerous drugs found in the premises belonged to a gang of triad members. The applicant had nothing to do with them. The drugs were left in the premises by the gang, who had tried to force her to traffic in the drugs because she owed them $60,000 plus weekly interest and she had not paid the money back. Moreover, the applicant was assaulted by the gang, who also threatened the life of the applicant's daughter.
11. The applicant said that a few months before October 2012, she had once agreed to traffic in dangerous drugs for the gang in order to pay off a gambling debt. On that occasion she was arrested. She subsequently absconded from bail and hid from the gang by moving home and changing her mobile telephone number. However, she was located again by the gang when she visited the premises on 18 October 2012. The gang then brought the dangerous drugs involved in the case and divided them in the premises. They also assaulted the applicant and threatened her that if she did not sell drugs for them, her daughter would die. She claimed that since she refused to do so, she and her girlfriend, Law, were kept captive inside a room at the premises and their mobile telephones taken away. However, before they did so, the applicant called her friends, including DW2 and Cheung, for help.
12. After the applicant and Law had been kept in the room with the dangerous drugs for about an hour, the applicant heard the police knocking on the door of the premises. The applicant then told Law to open the door and picked up the Minnie Mouse bag and the My Melody bag intending to give them to the police. However, when she saw PW2 in plain clothes, she thought PW2 was not a police officer but a member of the triad gang. Therefore, she threw the Minnie Mouse bag back into the room and tucked the My Melody bag into the waist of her trousers.
13. In respect of her replies under caution, the applicant claimed that what she told the police was false because she did not want to implicate Law[4] [5]
The summing-up
14. In the summing-up, having set out briefly the respective cases of the prosecution and defence, the judge told the jury that there were two main issues in the case. The first issue was whether the applicant was in possession of the dangerous drugs. The second was whether, if the applicant was trafficking in dangerous drugs, she was forced and compelled to do so under duress.
15. The judge then provided directions on law to the jury, in particular directions as to lies, bad character and duress. On the issue of escape from threat in respect of the defence of duress, the judge said[6]
“I will go to (5): “However, if you think that a reasonable person would or might have been driven to do what the defendant did, you will have to consider two further questions. The final questions are these. (1) Did the defendant fail to take an opportunity to escape from the violence to herself and the threat to her daughter’s life which a reasonable person in the defendant’s situation would have taken but which the defendant did not take?”
Pausing here. In this regard, you should not only concern yourself with what happened inside the premises on 18/19 October 2012, but what the defendant told you that she had been hiding away from this gang by moving to different addresses to live, this was after she had been arrested for trafficking in the methadone case, not this case. First, she went to her girlfriend’s mother’s address to live, then she returned to her own home in Tung Chung where her son, daughter and her own mother lived, and then on this very first day she planned to move in with her girlfriend at Sha Tau Kok at this house.
Ask yourself whether a reasonable person forced with the same situation as the defendant would report the matter to the police to arrest those Triad members or would a reasonable person just move around from house to house to house. If you are sure the defendant had an opportunity but did not take it, then the defence of duress does not apply, and you must find the defendant guilty.”
16. Throughout the summing-up, the judge reminded the jury several times that if they found that what the applicant had said was true or might be true, they should find her not guilty.
Personal background and mitigation
17. At the time of sentencing, the applicant had 10 previous convictions, eight of which were related to drugs, and two of which were for trafficking in dangerous drugs. The offence in the present case was in fact committed whilst on bail for another offence committed in 2012. Defence counsel accepted that there was little mitigation that could be advanced on behalf of the applicant. In respect of sentencing guidelines, counsel invited the judge to follow HKSAR v Tam Yi Chun [7] R v Lau Tak-ming & Another [8]
Reasons for sentence
18. As she was invited by defence counsel at trial to do, the judge followed Tam Yi Chun and Lau Tak-ming in sentencing in respect of the quantities of ICE and heroin narcotic involved. Adopting the combined approach and ignoring the midazolam content for the purpose of sentencing, the judge adopted an overall starting point of 9 years and 6 months’ imprisonment for the total quantity of narcotic concerned. She then enhanced the sentence by 6 months for the applicant’s previous similar trafficking convictions, and for committing the present offence on bail, thus making 10 years’ imprisonment.
Grounds of appeal against conviction
19. No grounds of appeal have been advanced by the applicant, who did not file any written submissions in respect of her application for leave to appeal against conviction. However, on 22 October 2021, the Court received a letter from the Faculty of Law of the University of Hong Kong drawing the court’s attention to two issues, which were identified as worthy of consideration in determining the applicant’s application for leave to appeal against conviction: namely (i) a potential problem in the direction relating to the direction on duress concerning the applicant’s reasonable opportunity to escape[9]
20. On the first issue, reference was made to the direction in the summing-up where the judge told the jury to consider not only what happened inside the premises on 18 and 19 October 2012, but also what the applicant had said in her testimony about hiding from the gang after she had been arrested for the previous case. It was pointed out that the applicant was alleged to have trafficked in dangerous drugs on 19 October 2012. Further, all the threats which could support the defence of duress had taken place on 18 and 19 October 2012. The consideration of whether the applicant had failed to take any reasonable opportunity to escape from the threat should have been confined to what happened inside the premises on the date of the offence. Instead of drawing the jury’s attention to the applicant’s evidence relating to the calls to her friends and to the police in deciding this issue, the judge wrongly asked the jury to consider “whether a reasonable person forced with the same situation as the defendant would report the matter to the police to arrest those Triad members or would a reasonable person just move around from house to house to house”[10]
21. The second issue arises from the following passage in the summing-up, where the judge set out the prosecution’s position in respect of the applicant’s actions when police officers arrived at the premises[11]
“She had made a confession to the police that those drugs were hers after her arrest. Mr Sham says her confession was made because it is true. The contents of her confession are true. He says, therefore, there is clear evidence the defendant was in possession of the drugs. Mr Sham says that the defendant’s account that she was going to hand over the drugs in the Minnie Mouse bag and the My Melody bag to the police is not true. He says her actions spoke for itself. She did the exact opposite. Instead of handing the drugs to police, she hid them in the trousers of her waist, and she threw them into the room.”
22. It is said that the above passage indicated that the prosecution had sought to rely on the applicant’s actions so as to invite the jury to draw an adverse inference against the applicant that she was in possession of the drugs. Since the applicant testified in court and offered an explanation for her actions, it is suggested that there might be an issue as to whether the judge should have given a tailored inference direction akin to a flight direction, and pointed out to the jury that: (i) the mere fact that the applicant acted in this way was not in itself evidence of guilt; (ii) if the jury thought her explanation was or may be true, then they should take no notice of the fact that she threw the Minnie Mouse bag into the room and tucked the My Melody bag in her waist; and (iii) it was only if the jury were sure that she did not throw the Minnie Mouse bag into the room and tuck the My Melody bag into her waist for an “innocent reason” that her actions could be regarded as evidence which supported the prosecution case.
The respondent’s submission regarding conviction
23. Mr Pierre Lui, on behalf of the respondent, submits that the summing-up by the judge gave all appropriate directions to the jury and cannot be faulted. In respect of duress, he argues that by voluntarily associating with known criminals well before the offence, knowing that she would be forced to sell drugs again to repay her gambling debts, the judge could not be said to have misdirected the jury on this issue. In particular, he relied on the judgment of Lord Bingham in R v Hasan [12]
24. As for the need for an inference direction, Mr Lui said there were no exceptional circumstances calling for a special, tailored direction on inferences.
Grounds of appeal against sentence
25. Mr Lee advances two grounds of appeal against sentence. Ground 1 avers that the judge wrongly applied the sentencing guidelines for trafficking in ICE, which were revised upwards by Tam Yi Chun , but which were not in existence at the time of the offence. The relevant guidelines applicable to the present case were those contained in Attorney General v Ching Kwok-hung [13]
The applicant’s submission regarding sentence
26. Under Ground 1, Mr Lee submits that if the judge had followed the guidelines in Ching Kwok Hung in respect of the quantity of ICE involved, ignoring the content of midazolam for the purpose of sentencing, the overall starting point under the combined approach for trafficking in 39.95 grammes of ICE and 25.41 grammes of heroin should have been 8 years and 10 months’ imprisonment. Accordingly, the overall starting point adopted by the judge was manifestly excessive and/or wrong in principle.
27. Under Ground 2, Mr Lee submits that when the judge enhanced the overall starting point by 6 months’ imprisonment for the applicant’s previous convictions and commission of the offence whilst on bail, she did not take into take into account the fact that the offence was committed in 2012, yet the trial was conducted in September 2020. Mr Lee further argues that the applicant had sensibly admitted the prosecution case subject only to her defence. Relying on HKSAR v Ma Kim-hung [14] HKSAR v Chan Chun-chuen [15] HKSAR v Chan Wai Hang [16]
The respondent’s submissions
28. Mr Lui accepts that since the offence was committed in 2012, the judge should have followed the guidelines in Ching Kwok Hung and not Tam Yi Chun . Adopting the combined approach and using ICE as the basis, Mr Lui suggested the notional starting point should have been about 8 years and 11 months’ (8.937 years’) imprisonment. He further accepts that the starting point adopted by the judge was “on the high side”.
29. On the other hand, Mr Lui submits that an enhancement of 12 months’ imprisonment should have been imposed in view of the fact that there were two other aggravating factors present in the case apart from the applicant’s previous convictions and commission of the offence whilst on bail. Firstly, the only inference that could be drawn from the presence of 32 bags of dangerous drugs comprising four different kinds of drugs, an electronic scale and numerous empty re-sealable plastic bags was that the applicant was heavily involved in the packaging and trade of dangerous drugs. He submits that the applicant’s role was more than a mere courier.
30. The second aggravating feature was the multiplicity of drugs. Relying on HKSAR v Islam Azharul [17]
31. As for the question of delay, the respondent submits that the applicant herself was responsible for any delay, since she had absconded from bail from 10 February 2015 until 12 December 2018, when she was re-arrested. Mr Lui relies on Chan Wai Hang to argue that no reduction of sentence was warranted.
Consideration
32. The applicant began by requesting an adjournment for time to instruct a private lawyer. I refused the application, which was opposed by the respondent, since the offence is now more than 9 years old and there is little chance of her appeal against conviction on the grounds advanced being allowed. Even if it was allowed, the likelihood is that she would be retried a decade after the offence had been committed.
33. I do not consider the matters brought to my attention by the Faculty of Law of the University of Hong Kong are reasonably arguable for the very reasons articulated by Mr Lui and I refuse leave to appeal against conviction. Neither ground is realistic on the facts nor correct in law. It is not reasonably arguable that the judge’s directions were insufficient.
34. However, there are reasonably arguable grounds of appeal against sentence, given that the judge based her sentence for the most serious type of drugs on a set of guidelines that were not in existence at the time of the commission of the offence: see HKSAR v Don Amarasinghalage Don Chandra Janaka [18] , where a similar thing had occurred and leave was granted for exactly the same reason.
35. Although I do not regard Ground 2 of the grounds of appeal against sentence to be reasonably arguable in itself, I shall simply grant leave to appeal on the matter of sentence rather than limiting either of the parties’ submissions on the questions of starting point and aggravating features. The reason for this is that the respondent will be arguing that the judge did not enhance the sentence sufficiently for the aggravating circumstances present. It seems to me, therefore, that it would be unfair to deprive the applicant of leave to argue the delay point if the respondent is arguing that the sentence should be enhanced for other factors.
36. Accordingly, I grant leave to appeal against sentence.
37. The applicant is advised that she has the right to renew her application for leave to appeal against conviction to the Court of Appeal, but she is also warned if she does so that the Court has the power to order the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application.
(Andrew Macrae)
Mr Pierre Lui SPP, of the Department of Justice, for the Respondent
Mr Victor Lee, instructed by Eric Yu & Co, assigned by the Director of Legal Aid, for the Applicant (re: Sentence)
The Applicant appeared in person (re: Conviction)
[1] HCCC 110/2013 and HCCC 152/2013 (heard together).
[2] HKSAR v Chan Hoi Wing [2015] 1 HKLRD 643.
[3] AB, p 21B-C.
[4] AB, p 26A-C.
[5] AB, p 25Q-T.
[6] AB, pp 49G-50B.
[7] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
[8] R v Lau Tak-ming & Another [1990] 2 HKLR 370.
[9] AB, pp 49G-50B.
[10] AB, p 49R-T.
[11] AB, p 44C-H.
[12] R v Hasan [2005] UKHL 22.
[13] Attorney General v Ching Kwok-hung [1991] 2 HKLR 125.
[14] HKSAR v Ma Kim Hung (Unrep., CACC 33/2002, 10 May 2002).
[15] HKSAR v Chan Chun Chuen (Unrep., CACC 233/2013, 30 October 2015).
[16] HKSAR v Chan Wai Hang [2012] 3 HKLRD 726.
[17] HKSAR v Islam Azharul [2020] 1 HKLRD 644.
[18] HKSAR v Don Amarasinghalage Don Chandra Janaka (Unrep., CACC 377/2016, 25 October 2017).