HKSAR v. Lam Wai Sum

CACC 289/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 289 OF 2015

(ON APPEAL FROM HCCC 398 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

1.The applicant faced one count of unlawfully trafficking in a dangerous drug, namely 41.53 grammes of a crystalline solid containing 40.87 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to this offence and was convicted after trial before Deputy High Court Judge Wilson Chan and a jury in the Court of First Instance on 11 August 2015. On the same day, he was sentenced to a total of 8 years and 6 months’ imprisonment.

2.On 1 September 2015, the applicant filed a Notice of Application for Leave to Appeal against his conviction and sentence but on 14 October 2015, he abandoned his appeal against sentence.  The applicant also seeks an order by this court that he be granted legal aid.

3.At the hearing of the application we deferred the decision whether to exercise our power under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221 to grant the applicant an appeal aid certificate as we wished an opportunity to assess the merits of the applicant’s complaints.  We, therefore, proceeded to hear the application for leave to appeal against conviction.  At the conclusion of the hearing we refused the application that we grant the applicant an appeal aid certificate and we refused the application for leave to appeal conviction.  We said we would give our reasons for doing so at a later date.  This we now do.

The prosecution case

4.On 14 April 2014, a police officer intercepted the applicant outside Hoi Fu Court in Mong Kok.  In the course of searching the applicant’s shoulder bag, this officer found three transparent resealable plastic bags which he suspected contained a dangerous drug.  A subsequent examination by a government chemist found that the substance in the three plastic bags was a total of 41.53 grammes of a crystalline solid containing 40.87 grammes of Ice. 

5.This police officer then arrested the applicant for possession of a dangerous drug and cautioned him.  Under caution the applicant said “The stuff is for my own consumption.”  This was recorded in the police officer’s notebook as a post-recorded statement. 

6.The applicant was then taken to the police station where a video record of interview (“VRI”) took place.  The applicant’s VRI was admitted into evidence during the trial, its voluntariness not being disputed.

7.In his VRI, the applicant claimed that he bought the drugs for his own consumption, his daily consumption of Ice was 175 milligrammes, and that the amount he had bought could be divided up into 4 doses for each packet, making a total of 12 doses in all.  He said he purchased this large quantity of Ice because it was cheaper for him to do so.  As to his ability to pay for the Ice, he said he derived an income from casual work as a transport worker and from winnings at gambling. 

8.As to how he came to make the purchase he said that after having a meal at a restaurant in Prince Edward Road Mongkok he happened to bump into his supplier, a woman named Eva.  She offered to sell the applicant all the Ice she had for HK$4,500 and the transaction was concluded around 10 minutes past midnight on 14 April at a park at Hoi Fu Court.  After the transaction was completed the applicant waited at Hoi Fu Court for a taxi and he waited there until his arrest by the police, which took place at 1:26 am, some 1 hour 10 minutes later.

9.It was an admitted fact that the estimated retail value of the drugs as of April 2014 was HK$16,903.

10.The prosecution case was, therefore, a quite simple and straightforward one.  There was only one issue for the jury, namely the reason for the applicant’s possession of the Ice.  The prosecution alleged the applicant was in possession of the Ice for the purchase of trafficking in it, whilst the applicant maintained that he possessed the Ice for the purpose of consuming it.  Relevant to a determination of this issue was the other evidence adduced by the prosecution, which was evidence of the applicant’s financial position and evidence of the daily consumption of Ice by those who abused this drug.

11.The evidence of the applicant’s financial position came from the testimony of Madam Chung from the Social Welfare Department, who gave evidence as to the Comprehensive Social Security Assistance (“CSSA”) received by the applicant.  The applicant first applied for CSSA on 30 September 2011 and his application was approved one month later, on 30 October 2011.  As at 30 April 2014 the applicant was receiving a net amount of HK$3,340 per month, by which time payments had been made to him over a period of two years and six months.

12.The evidence of the daily consumption of Ice by abusers of the drug came from Dr Leung, a specialist in psychiatry at the United Christian Hospital.  He gave expert evidence as to the daily consumption rate of Ice and of its effect on users.

13.Prior to trial, Dr Leung had prepared two statements for the prosecution, one dated 17 March 2015 and the other dated 14 July 2015.  The prosecution made use of the latter statement and it became Exhibit P15.  The earlier statement was not produced but it was disclosed to the defence as unused material.  Its existence became known to the jury when defence counsel cross-examined Dr Leung on its contents.

14.In his exhibited statement Dr Leung said:

“The current consumption pattern in Hong Kong is that a typical psychoactive dose (or known as one ‘hit’) is to consume 30‑40 milligrams of ICE and one-tenth of a gram of ICE can provide about 3 or 4 ‘hits’. Each ‘hit’ can bring about an effect lasting between 12 to 24 hours. The average abuse dosage for new or infrequent users of the drug is in the range of 0.05 to 0.1 gram per day. For regular users, the average daily consumption is in the range of 0.1 to 0.5 gram.”

15.This differed slightly from what he had said in his first, un‑used, statement. In that statement the penultimate sentence in the passage quoted above was not present and the last sentence was expressed in the following way:

“However, for experienced users, they develop tolerance and usually repeat the dose up to 4 to 5 hits within a few hours to attain their desirable level of ‘high’. The typical abuse dosage of this group of users can be up to 0.5 to 1 gram on a daily basis.”

16.This was supplemented by his oral testimony, the effect of which was summarised by the judge in his summing-up.  He told the jury:

“ In his oral evidence, Dr Leung clarified that by ‘regular users’ as he referred to in his report, he was referring to those who were using the ‘Ice’ drug as a habit, those persons who has a ‘dependence’ on ‘Ice’.

Dr Leung accepts that there is a further category of persons who may be called, and I quote, ‘experienced users’, who have developed a tolerance to the ‘Ice’ drug, and who may take four to five hits within a few hours in order to achieve their high.  For these ‘experienced users’, Dr Leung accepts that they may use as much as 0.5 to 1 gramme of the ‘Ice’ drug per day.  I repeat that.  0.5 to 1 gramme of the ‘Ice’ drug per day.”

The defence case

17.The applicant gave evidence and his case at trial was that he had been addicted to drugs since 2002.  On 14 April 2014 he bought the three packets of Ice for his own consumption at a price of HK$4,500, substantially discounted from the normal price of HK$10,000 odd.  He said that at the time of his arrest he was taking 1.75 grammes of Ice per day, 10 times the amount of his daily use that he stated in his record of interview.  He also said in regard to the three packets of drugs that each could be divided into 12 doses, with the consequence that a total of 36 doses could be derived from the three packets.

18.As to his source of funds he said that an injury to his left hand prevented him from doing very much work but from March to mid-April he had worked 12 days for which he was owed HK$6,000.  He received this money on 11 April 2014 and withdrew it in cash the same day.

19.He said he had taken Ice at around 10 pm that night, and was under the influence of Ice when giving answers during his video-recorded interview.  This explained, he said, why some of the evidence he gave at trial was different from his answers during the interview. 

20.The applicant also called his solicitor, Mr Lee, to produce documents from the Bank of China and Promise (Hong Kong) Company Limited to reflect his financial situation.

The error as to the time of the VRI

21.Before commencing his summing-up, the judge noticed an error in the Admitted Facts in respect of the times that the VRI was said to have been held.  The Admitted Facts recorded the interview as having taken place between 18:57 hours and 19:12 hours on 14 April 2014 and this was wrong.  The correct times were between 06:57 hours and 07:12 hours.  After discussing this issue with counsel, it was agreed that a set of supplementary Admitted Facts would be given to the jury the effect of which was to amend the first set of Admitted Facts and to correct the start and end times as recorded in the transcript of the record of interview by removing the reference to “PM” and inserting in its place “AM”. 

22.The correcting action prompted an application by defence counsel to reopen the defence case and recall the applicant so as to testify to his lack of sleep and the effect that had on him at the time of the VRI. 

23.However, the judge refused this application, characterizing it as an attempt by the applicant to have a second bite of the cherry.  The judge noted that the defence case was not that the applicant was sleep deprived at the time of the VRI but, rather, was under the influence of Ice.  He concluded that any effect on the applicant from his lack of sleep was something that could have been led during the defence case.

The grounds of appeal

24.In his Form XI filed on 1 September 2015, the applicant submitted six grounds of appeal against conviction.  He repeated them in a letter to the court filed on 23 November 2015 but in that letter the six complaints became four in number as he incorporated two of his complaints into the one ground.  The applicant’s complaints are:

(1) He wished to conduct the trial in Chinese but this was refused by the judge.  As a result, his evidence had been constantly interrupted by the interpreter and he could not complete it smoothly resulting in the jury failing to hear his complete case.

(2) There were two reports by Dr Leung citing different figures for the daily intake of Ice.  This gives rise to two complaints by the applicant. They are:

(a) the prosecution did not state which report would be relied on; and

(b) the judge failed to direct the jury as to which of the two reports should be relied on.

(3) When the Admitted Facts was found to contain an error as to the time the video-recorded interview was taken defence counsel applied to recall the applicant.  This application was refused by the judge.  This error as to the timing of the VRI and the judge’s refusal to allow the applicant to be recalled gives rise to two complaints by the applicant.  They are:

(a) the error in the timing of the VRI may have caused the jury to be confused in their thinking process or negligent in their reasoning; and

(b) the applicant’s counsel was intimidated by the judge thereby preventing justice from being served.

The respondent’s submissions

25.Mr Eddie Sean, SADPP, appearing for the respondent submitted that the applicant’s Ground 1 had no merit as no unfairness was created as a result of having the trial conducted in English.

26.Regarding Ground 2, the respondent explained that although two reports were served by the prosecution, only the second, dated 14 July 2015, was produced into evidence.  This was the report which the judge referred to in his summing-up, so the jury would not have been confused.  The different figures in the two reports were also explained by the categorisation of new or infrequent users[1], and regular users[2] in the latter report; whereas the first report described experienced[3] users.  In any event, the figures for experienced users were given in oral evidence and also cited by the judge in his summing-up.  As a result, no unfairness was created to the applicant.

27.As to the change in the Admitted Facts, it was submitted that it had no bearing on the fairness of the trial and there was no serious procedural flaw, as the voluntariness of the video-recorded interview was not challenged by the defence.

28.Finally, there was nothing to show that the judge had intimidated the applicant’s counsel in any manner.

Consideration

29.There is nothing in the first ground of appeal.  True it is that the trial was originally to take place in Chinese and that it was the judge who suggested changing the language of trial to English.  The judge gave defence counsel the opportunity to discuss this proposal with his client.  He did so and the applicant consented to it and his counsel so informed the judge.

30.There is no doubt that testifying through an interpreter is not as smooth a process of communication as when everyone present speaks the same language.  The interpreter may have to ask the witness to repeat himself to confirm or clarify what is being said but that is all a normal part of the process.  We cannot see how any of the complaints of the applicant deprived him of a fair trial.  The applicant has not pointed to any occasion where, because of the interpretation, he was prevented from placing his evidence before the jury.  Nor does he complain that the interpreter was incompetent or misinterpreted important parts of his evidence.  We find nothing unfair in the applicant’s trial simply because the language of trial was changed to English.

31.In respect of the applicant’s second ground of appeal, we have set out how the two statements of Dr Leung came to be before the jury and the effect of his evidence as summarised by the judge. The applicant makes no criticism of the accuracy of the judge’s summary of Dr Leung’s evidence.  It is clear that Dr Leung, in his oral testimony, repeated what he had said in his first statement about experienced users consuming up to 1 gramme per day.  Even though the applicant would place himself in this category he does not derive great benefit from it as his evidence of consuming 1.75 grammes per day would still be far greater than the maximum daily usage to which Dr Leung testified. 

32.We can see nothing in what took place to suggest the jury would have been confused by the existence of the first un-used statement.  Nor was there anything improper in the conduct of the prosecution.  Indeed the existence of the second statement only became known to the defence because the prosecution very properly disclosed it to them.  There is no merit in either of the applicant’s complaints.

33.The remaining complaints of the applicant relate to the error in the timing of the VRI.  This error was detected by the judge before closing speeches and so it would not have affected the way each counsel, and most importantly, defence counsel, would have addressed the jury.  Furthermore, the judge reminded the jury of the correct time as he went through the evidence with them in the course of his summing-up and, on two occasions, he also reminded them that it was the defence case that at the time of the VRI the applicant was still under the influence of Ice.

34.Far from harming the applicant’s case, correcting the error was of considerable benefit to him as the VRI was then brought forward in time by 12 hours, thereby making more credible his claim that at the time of the VRI he was still subject to the influence of Ice.

35.There is no reason to believe that the jury was confused in any way by this error being detected at such a late stage of the trial.

36.The second complaint arising from this error being detected is that the applicant’s counsel was intimidated by the judge.  This complaint is prompted by the judge’s refusal of the defence counsel’s application to re-open the defence case and to recall the applicant. 

37.We note the applicant has not sought to place before us any affirmation by his counsel that he felt intimidated by the judge.  There is, consequently, no evidential support for this claim.  We have, therefore, turned to the transcript of the hearing of this application to determine whether any impropriety has taken place in the course of the application.  It clearly has not.  The judge dealt with the application fairly, revealing to defence counsel what troubled him about the application so that defence counsel had an opportunity to address his concerns.  This sort of exchange between bench and bar takes place every day in our courts and is to be encouraged.  There is absolutely no merit whatsoever in this complaint.

Conclusion

38.There being no merit in any of the applicant’s complaints it did not appear to us that he should be granted legal aid and we therefore refused his application to us to exercise our power under Rule 12(3) of the Legal Aid in Criminal Cases Rules to grant him an appeal aid certificate.

39.For the same reason, that is, there being no merit in any of the applicant’s complaints, we refused the application for leave to appeal conviction.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] 0.05 to 0.1 gramme per day

[2] 0.1 to 0.5 gramme per day

[3] 0.5 to 1 gramme per day