HKSAR v. Balan, Eg Dionisia Ligligen

HCMA 359/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 359 OF 2016

(ON APPEAL FROM KCCC 3691 OF 2016)

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JUDGMENT

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1.The Appellant was convicted after trial in the Magistrates’ Court on a charge of unlawful possession of dangerous drugs consisting of 7.06 grammes of a crystalline solid containing 6.92 grammes of methamphetamine hydrochloride. She was sentenced to two years’ imprisonment.

2.She appeals against conviction and sentence. Her Notice of Appeal Against Sentence was filed within time.  Her Notice of Appeal Against Conviction was filed out of time, but I considered it right to entertain her appeal against conviction on the merits.  She is represented by counsel on her appeal against conviction, but is in person on her appeal against sentence.

3.In her Statement of Findings, the Magistrate summarised the prosecution’s case as follows:

“ 4. Put shortly, it was the prosecution case that at the material time, PW1 and PW2 were on patrol duty in plainclothes. They were on the same street but were not walking together. They were about 20 to 25 meters away from each other. PW1 saw the defendant turning her head to her left, right and back while walking along in a hurried pace. PW1 found her to be suspicious. PW1 stopped in front of her and asked her to freeze. The defendant stopped. They were standing face to face at about 1 meter apart. PW1 revealed his police identity to the Defendant and told her why she was stopped. At this juncture PW1 saw something drop from the Defendant’s right hand onto the ground. The Defendant’s right hand was originally clenched and pointing towards the ground on the right side of her body. PW1 immediately picked up the thing from the ground that the Defendant had dropped and that was at the right side of her foot. It was found to be a plastic bag containing crystallized material (which was later confirmed to be a dangerous drug of the nature and with the quantity as stated in the charge sheet). Suspecting that it was a dangerous drug, PW1 arrested the Defendant for Possession of a Dangerous Drug.

5. At this juncture, PW2 came to assist PW1. PW1 passed the packet of dangerous drugs to PW2 for safe keeping.

6. PW1 later brought the Defendant to a nearby building at No. 4-6 Kai Ming Street, (“the Building”), waiting for a woman teammate to come so as to conduct a body search on the Defendant.

7. Later on, a woman police officer came to the G/F of the Building and searched the Defendant’s body. Nothing suspicious was found.

8. PW4 being a teammate of PW1 and 2 attended the scene. PW1 told him what had happened earlier on. PW2 showed him the packet of dangerous drug in question. He did not talk to the defendant at all.

9. PW3 said that he was never present at the scene. He was the investigating officer of the case. He only took a cautioned statement from the Defendant after she was brought back to the police station.

10. It was the evidence of all PWs that they had never dealt with or seen the Defendant before.  It was never challenged by the defence.”

4.Turning to the defence case, the Magistrate summarised it as follows:

“ 11. Put shortly, the Defendant denied that she was in possession of the dangerous drug as alleged. She said she did not hold the packet of dangerous drug in her hand and drop it onto the ground upon being intercepted by the police officers. She said she was not intercepted and arrested by PW1. She said at the material time she was walking with her boyfriend and 2 other friends in a hurried pace because it was raining heavily. She was stopped by PW3 and another police officer. PW3 took her 5 steps away from her friends. PW3 searched the front and back pockets of her trousers. Nothing suspicious was found. As it was raining heavily, PW3 took her to the G/F of the Building and searched her front and back trousers pocket there again. Nothing suspicious was found. Then she saw PW3 talked on a mobile phone. She heard him say ‘sau mo’ ‘doi mo’ which she understood to mean ‘not in the hands’ and ‘nothing in the pockets’. Later on a woman police officer came who conducted a search on her body. Again nothing suspicious was found. But then there came 3 to 4 more police officers including a sergeant (PW4) who showed her the packet of dangerous drug in question (Exh. P1) and asked her what it was. In reply she said she did not know. PW4 said in Punti ‘n’ho waan ngor’ which she understood to mean ‘don’t play with me’. PW4 further asked, ‘you want me to call the boss?’ The defendant said in reply, ‘go ahead call’.

12. The line of defence essentially was that the Defendant was framed up by the police.

13. The Defendant said in her evidence that she did not know and did not have grudges with any of the prosecution witnesses prior to this incident.”

5.Next, the Magistrate said that the issue was whether the Appellant was in possession of the dangerous drugs, that it was a question of fact and that the credibility of police officers was in issue. Finally, under the sub-heading “Evaluations and Findings”, the Magistrate said as follows:

“ 15. I had carefully considered all the evidence and submissions. I had the benefit of observing the demeanor of the witnesses as they gave evidence. In reaching my verdict I had reminded myself of the burden and standard of proof and that the burden was on the Prosecution throughout.

16. I had also carefully considered the evidence of PW1 and PW2 and all the various criticisms made of the evidence of them in the defence submission. I was impressed with the evidence of all prosecution witnesses. I found their evidence to be clear, cogent and compelling. Their evidence remained unshaken under cross-examination. Their evidence was consistent with each other in material aspects.

17. I was aware that there were discrepancies among their evidence. Such discrepancies as there were very minor. In any event any discrepancies were not such as to leave me with any concern as to the reliability and credibility of the prosecution witnesses. I considered all prosecution witnesses were honest and reliable witnesses. I believed them.

18. I accepted PW3’s explanation as to why no fingerprint evidence was adduced to court. He said that from his own experience, as the packet of dangerous drug was picked up from the ground of a street, there would be some dust on it. It might be impossible to lift any fingerprint from it. I also accepted that it was considered unnecessary to conduct a fingerprint examination on the packet of the dangerous drug as it was said to have been seen to drop from the Defendant’s hand at the material time.

19. I did not believe the evidence of the Defendant generally and in particular [her] assertion that she was framed up by the police officers.

20. The evidence of the Defendant as to the events in question struck me as being inherently improbable. First as the Defendant admitted she had never seen any of those police officers who gave evidence in this case before. There were no grudges between her and the police officers. Then why did they frame up the Defendant? The Defendant said in her evidence that she was with 2 other friends and her boyfriend before she was intercepted. Why the police officers picked her and her alone to frame up? The quantity of the dangerous drug in question was not small. There were about 7 grammes of methamphetamine hydrochloride. Why the police officers planted such a large quantity of drugs on her? Besides, her assertion that she was searched 3 times at the scene was illogical and unreasonable. Her evidence suggested that she was targeted to be framed up by the police. Then why would it be necessary for the same male police officer (PW3) to search her for the second time after she was searched and found to be in possession of no drugs? Why would it be necessary for the police officers to arrange for a woman police officer to attend the scene to search her again after she had been searched twice and nothing suspicious was found on her? The court also noted that Defendant gave vague and evasive evidence as to how the packet of dangerous drug in question came about. The Defendant said in her evidence that she was walking fast at the material time because it was raining heavily that hour. But when PW1 was giving evidence, it was never put to him that it was raining when he said there was sunshine. If it was really raining heavily as she said which made her walk quickly and even have to use her clothes to cover her head, why and how did PW3 conduct a search on her for the first time under such heavy rain?

21. I found that the Defendant was neither honest nor reliable. I did not believe her.

22. I was aware that the Defendant’s guilt did not follow from my disbelieving her evidence and that it remained for the prosecution to prove the charge beyond reasonable doubt.

23. I accepted the evidence of PW1 that at the material time there was sufficient lighting at the scene as there was sunshine. He was face to face with the Defendant. They were about one meter apart. He was on duty making enquiry with a suspicious person. He was paying attention to the whole body of the Defendant at the time when he was making enquiry with her. He did see a thing dropped from the right hand of the Defendant and fell onto the ground at the right side of the Defendant’s right foot. Apart from this thing, there was nothing else in the vicinity.

24. PW1 did say in his evidence that he did not see the packet of dangerous drug held in the Defendant’s hand before it dropped from it. I found it to be reasonable and logical. The duty of PW1 in court was to tell the truth and not to speculate. PW1 of course could not have seen what was inside her clenched fist. He only saw the thing when her clenched hand got loose, the thing dropped from it and landed onto the ground. He immediately picked it up and found it to be a packet of crystalline material which was later confirmed to be dangerous drug.

25. I was satisfied from the Prosecution evidence that the Defendant acted furtively at the material time. PW1 stopped her. Upon hearing that PW1 was a police officer and why she was stopped, the Defendant dropped a packet of dangerous drug from her right hand onto the ground. She was in physical possession of the packet of dangerous drug before dropping it onto the ground. I was also satisfied that the only irresistible inference could be drawn was that at the material time the Defendant knew that she was in possession of the dangerous drug and knew the nature of the dangerous drug.

26. I was satisfied that all elements of the charge were proven by the Prosecution beyond reasonable doubt and I convicted the Defendant of the charge accordingly.”

6.A document headed “Perfected Grounds of Appeal” signed by Counsel for the Appellant was received at the Appeals Registry.  It consists of 8 paragraphs.  The first three paragraphs come under a sub-heading which reads “BACKGROUND”. The next sub-heading reads “GROUNDS OF APPEAL”. Under it are three grounds of appeal, numbered 4 to 6, all being against conviction. Then there is a sub-heading which reads “COSTS”. Under it is a paragraph, numbered 7, which asks for costs. Finally, there is a sub-heading which reads “SUMMARY”. Under it is a paragraph, numbered 8, which consists of arguments. 

7.At the hearing of the appeal, Counsel for the Appellant abandoned Ground 4, and argued only Grounds 5 and 6. 

8.Ground 5 reads:

“ 5. There is a lacuna in the chain of events:

a. The Prosecution’s case was that on 29 July 2016 the Appellant was intercepted by PC12672, hereinafter known as ‘PW1’, at Kai Ming Street near the junction of To Kwa Wan Road, Hung Hom, Kowloon, Hong Kong.

b. PW1 saw the Appellant’s hand pointing downwards. Please refer to the transcripts of proceeding, page 7, Line B, which states as follows:

A: At the time, I saw her, with her hand, pointing downwards……

c. PW1 saw the Appellant’s palm was tight at first. Please refer to the transcripts of proceeding, page 8, Line A & B, which states as follows:

PUNTI INTERPRETER: ‘Her palm…..’

A: ….…was tight at first

d. PW1 saw ‘it got loose’, it, referring to the Appellant’s hand. Please refer to the transcripts of proceeding, page 7, Lines R, S & T, which states as follows:

Mr Lee: No, no, the hand, the hand, the position

A: Well, at the time, her hand was pointing towards….

PUNTI INTERPRETER: ‘Was pointing downwards….’

…….and it got loose and something dropped from it.

e. Something dropped onto the ground. Please refer to the transcripts of proceeding, Page 7, Line B, which states as follows:

A: At the time, I saw her, with her hand, pointing downwards and it’s just got something dropped onto the ground.

f. The first time PW1 saw one plastic bag containing 7.06 grammes of crystalline solid containing 6.92 grammes of methamphetamine hydrochloride (a salt of methamphetamine) on the ground, hereinafter known as ‘P1’, was when it was on the ground. Please refer to transcripts of proceeding, page 21, Lines S, T & U.

Q: Just wanted to clarify; so, the first time you saw the pack of drugs, it was on the ground?

A: Yes.

Q: Thank you. No further questions.

PW1 never saw P1 in the hand of the Appellant. When the Court asked PW1 the following question PW1 replied ‘I did not see it;’ Please refer to transcripts of proceedings, page 21 Lines E, F, G, H, I.

BY COURT

Q: Yes, Witness, I would clarify with you one thing. In cross-examination, when, when being asked, in the seven to eight seconds, in that seven to eight seconds, which was from the time you stopped yourself in front of the defendant to the dropping of the packet of suspected DD from her hand you were… whether you were able to say that the defendant was definitely holding the thing, the packet of suspected DD, in the palm of her hand, your answer was, ‘I am not sure’; what do you mean?

A: Because, at the time, I did not see it; all I saw was that she was clenching her fist. I did not see whether she was holding a pack of things in her hand.

Q: Yes. Is that all? A: Right.

g. PW1 did not see P1 in the hand of the Appellant. PW1 did not see P1 dropping to the ground. There is nothing to link P1 which PW1 saw for the first time on the ground was ever in the Appellant’s possession. PW1 can only describe a hand movement of the Appellant, and ‘something dropped to the ground.’ PW1 cannot tell what this something is, and hence, since the time frame between the acts (b, c, d & e) are so close in time, it is inferred that P1, which was sighted for the first time by PW1, on the ground, must have been in the possession of the Defendant. Such an inference is erroneous, as it removes any other possible explanations.

h. PW1 was also asked the following question in cross-examination. Please refer to proceedings of transcripts, Page 15 Lines N & O.

Q: How long was it when you told her to stop,…when you looked at her, you told her to stop, and when you allegedly say she dropped the bag onto the floor, P1?

A: One to two seconds.

i. When the same question was asked of PW1 again he said from seven to eight seconds. Please refer to proceedings of transcripts, Page 16 Line D&E

MRS KHATWANI: I mean the whole course from when he stopped……told her to stop, looked at her and the exhibit dropped to the floor, allegedly.

COURT: When he himself stopped?

MRS KHATWANI: Yes, he himself stopped, he told……

COURT: Told the defendant to stop…..

MRS KHATWANI: …..her to stop…..

COURT: …..and…..

MRS KHATWANI: ….and then he….and he allegedly says the exhibit dropped onto the floor.

A: For seven to eight seconds.

j. This shows the time frame between the acts are so close in time.

k. With regards to PW1’s observation, PW1 replied in examination in chief:

Q: Now, when you – you just told us that you picked up that pack of things from the ground; now, at that moment, was there any other objects or things on the ground other than that pack of things?

A: No

l. Yet in cross-examination, PW1 had the following information to impart: Please refer to proceedings of transcripts, Page 14 Lines Q, R, S, T U & V and Page 15 Lines A & B

Q: When you first saw the defendant, she was some 15 metres away from you, isn’t it?

A: Yes.

Q: And what caught your attention was that she was turning her head from side to side?

A: Yes

Q: And, also, what caught your attention was that she was walking in a hurried pace, isn’t it?

A: Yes

Q: And, as per your testimony, you said that you and PC17048 went up together and showed her your badges to reveal your identity, isn’t it?

A: No, at the time, I stopped…..

PUNTI INTERPRETER: ‘Intercepted…..’

A: …….her on my own.

m. From the above text it can be seen that his attention was on the Appellant, and not on the ground.

n. Hence, it calls into question how much PW1 was really able to observe, seeing that he had only up to 8 seconds to intercept & observe the Appellant before he first saw P1 on the ground.”

9.The complaint of a lacuna in the prosecution’s case is not made out.  There was some lack of clarity at one stage, but the position was satisfactorily clarified, and the Magistrate was entitled, on the whole of the evidence, to find and conclude beyond reasonable doubt, as she did, that the packet of dangerous drugs had been in the Appellant’s hand, and was retrieved from the ground where she dropped it.  Ground 5 fails.

10.Ground 6 reads as follows:

“ 6. There is no direct evidence by way of fingerprint evidence linking the Appellant to P1.” P1 is the packet of dangerous drugs

That is so. But it is not a good ground of appeal.  There was other evidence providing such a link.  There was a satisfactory explanation for the absence of fingerprints which the Magistrate was entitled to accept and did accept.  Ground 6 fails.

11.I turn now to the appeal against sentence. 

12.The Magistrate had regard to the Appellant’s previous convictions, saying this in her Reasons for Sentence:

“ 3. The defendant has 10 previous convictions, of which two were possession of a dangerous drug respectively in 2012 and 2014. At the same time when she was first sentenced for possession of a dangerous drug, she was also sentenced for one count of traffic in a dangerous drug and one count of possession of equipment fit and intended for smoking/injecting/inhaling a dangerous drug. The sentence in total was 2½ years’ imprisonment.”

13.The Magistrate then turned to why she did not send the Appellant to a Drug Addiction Treatment Centre, saying this:

“ 4. For the present offence, the court called for a Drug Addiction Treatment Centre suitability report before passing a sentence. The report came to hand and revealed some personal background of the defendant. She came to Hong Kong from the Philippines in 2005 on the strength of a domestic helper visa. After being terminated by her employer in 2007, she continued to stay in Hong Kong illegally and was arrested for Breach of a Condition of Stay (overstay) in 2008. In August 2008 she raised a torture claim and had been released on recognizance until now.

5. The reporter considered the defendant not suitable for Drug Addiction Treatment Centre although she was found to be a drug dependant because she had been overstaying in Hong Kong. The reporter said in the report, ‘It may not be practical to administer to her the one-year statutory supervision after a 2 – 12 months’ treatment period, which is part and parcel of the whole drug abstinence programme’.

6. The report also revealed the financial status of the defendant. The defendant had been relying on the financial subsidies granted by ISS-HK since becoming a torture claimant. Her 5-year-old daughter was a CSSA recipient.

7. Regarding her drug addiction history, the defendant told the reporter that ‘she was tempted by her cohabitant to inhale “ice” in 2010. Allegedly she took it thrice a week at a cost of $100 each time until November 2014. She claimed that the drug was supplied by her cohabitant free of charge and she took it at home.’ The reporter commented that the defendant was evasive in revealing her drug history. She on the one hand claimed that she ceased taking drug since November 2014, on the other hand her urine specimens collected on 15 January and 17 January 2016 found to be positive for ‘ice’.

8. In mitigation the counsel for the defendant told the court that the defendant asked for a leniency and wished to be reunited with her 5-year-old daughter as soon as possible.” 

14.Then, after noting that the Appellant sought leniency and wished to be reunited with her young daughter as soon as possible, the Magistrate turned to the amount of drugs and the matter of “latent risk”, beginning by saying this:

“ 9. In the present case, the court considered that the amount of dangerous drug involved in the present case was by no means small and the latent risk of the dangerous drug falling into the hands of other people was high. The defence counsel was invited to make a submission on this. In response she said that this matter was entirely left to the court..”

15.Following that, the Magistrate dealt with two previous cases, saying this:

“ 10. In the case of HKSAR v Mok Cho Tik CACC 422/2011, the Court of Appeal said that an appropriate starting point for mere possession of a quantity of ‘ice’ which a genuine user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment and that the latent risk factor, the quantity of dangerous drug and whether the defendant was a persistent offender had to be taken into account in sentencing.

11. In HKSAR v Jarhia Kuldeep Singh CACC 96/2006, the Appellant’s conviction for trafficking of a crystalline solid containing 6.82 grammes of methamphetamine hydrochloride (‘ice’) was quashed and substituted by a conviction for simple possession. In sentencing, the court considered that 6.82 grammes of ‘Ice’ was neither very small nor very large and was able to last a considerable time for a drug addict. The court took a starting point of 15 months’ imprisonment and enhanced the sentence to take into account the latent risk factor by adding a further 12 months making a starting point of 27 months’ imprisonment.

12. In the present case, the quantity of ‘Ice’ involved was 6.92 grammes, slightly more than that in Jarhia Kuldeep Singh case.”          

16.Finally, the Magistrate said this:

“ 13. Having taken into account all the circumstances of the case including, the quantity of ‘ice’ involved, the defendant was a drug dependant, her unsound financial status and her dangerous drugs related previous convictions, I took a starting point of 15 months’ imprisonment and enhanced the sentence to take into account the latent risk factor by adding a further 9 months’ imprisonment making a starting point of 24 months’ imprisonment.

14. There was no other mitigating factor. The defendant was convicted after trial and deserved no discount.

15. The defendant was sentenced to 24 months’ imprisonment.”

17.Arguing her appeal against sentence in person, the Appellant relied on the pro forma ground printed on her Notice of Appeal Against Sentence in Form 102, and complained that her sentence was too severe. 

18.That complaint is not made out.  The Magistrate’s approach is correct, and the sentence which she passed is within the appropriate range. 

19.For the foregoing reasons, there is no basis to disturb this conviction or interfere with this sentence. 

20.Accordingly, both the appeal against conviction and the appeal against sentence are dismissed.

Ms Chan Sze-yan, SPP(Ag) of the Department of Justice, for the respondent

Ms Priyam Vijay Khatwani, instructed by John M Pickavant & Co, for the applicant