HKSAR v. Wong Pui Wo Kenny

CACC 146/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 146 OF 2017

(ON APPEAL FROM DCCC 925 OF 2016)

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REASONS FOR DECISION

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1.The applicant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 17 August 2016 near Wo Yue House, Fung Wo Estate, Shatin, New Territories, the applicant unlawfully trafficked in 31.30 grammes of a crystalline solid containing 3.54 grammes of methamphetamine.

2.The applicant pleaded not guilty to this charge and was tried in the District Court before District Judge Sham (“the judge”).  On 17 May 2017 he was convicted as charged.  On 18 May 2017 he was sentenced by the judge to a period of 53 months’ imprisonment.

3.On 22 May 2017 he filed a Notice of Application for Leave to Appeal (Form XI) in respect of both his conviction and sentence.

4.On 22 May 2017 he filed an application for bail pending appeal.  This application first came on the hearing on 25 July 2017 but was adjourned as the applicant did not have the appeal bundle and did not have any formulated grounds of appeal.

5.The application was subsequently refixed to 24 August 2017 and on that day I further adjourned the hearing of the application and granted the applicant legal aid for this bail application. Since that date Mr Victor Lee has been briefed to appeal for the applicant and he has filed Preliminary Grounds of Appeal.

The arraignment

6.When a plea was taken from the applicant, he pleaded not guilty to trafficking in a dangerous drug but guilty to possession of a dangerous drug.

The prosecution case

7.The prosecution case consisted only of Admitted Facts with no live witnesses being called.  The Admitted Facts revealed that the applicant was arrested at 18:10 hours on 17 August 2016 in the vicinity of Wo Yue House, Fung Wo Estate, Shatin.  The police seized from the applicant’s left trouser pocket a transparent resealable plastic bag wrapped in two pieces of tissue paper.  The contents of this plastic bag were later confirmed by the Government Chemist to be a total of 31.30 grammes of a crystalline solid containing 3.54 grammes of methamphetamine.

8.Paragraph 8 of the Admitted Facts stated as follows:

“The average retail price of crystalline solid containing methamphetamine was HK$346 per gramme. The retail value of the dangerous drugs seized from the Defendant in the vicinity of Wo Yue House, Fung Wo Estate, Shatin, was HK$10,830.”

9.Also in the Admitted Facts was evidence of the applicant’s receipt of Comprehensive Social Security Assistance (“CSSA”).  He first applied for CSSA on 3 June 2016 and on 7 June 2016 was granted an allowance in cash of $1,500.  On 13 June 2016 a further $698 was deposited into the applicant’s bank account making a total allowance for June 2016 of $2,198.  On 30 June 2016 an amount of $2,355 CSSA was deposited into the applicant’s bank account as his allowance for the month of July 2016.  No CSSA allowance was paid to the applicant for the month of August 2016 as the applicant had failed to provide certain documents requested of him.

10.The Admitted Facts contained an admission as to the voluntariness of the applicant’s video record of interview which was produced as a prosecution exhibit.

11.In the final paragraph of the Admitted Facts it was admitted that at the time of his arrest the applicant was in possession of HK$174.50 and a mobile phone.

The defence case

12.The applicant gave evidence but called no witnesses on his behalf.  Parts of the applicant’s evidence were not challenged, such as his claim that he had been an Ice abuser for 15-16 years and his evidence in respect of his employment and income.  This was to the effect that about two months before his arrest he had changed from being a full-time night-shift taxi driver to being a part-time one as a result of which his income had reduced from $15,000 per month to about $5,000 per month.  It was this reduction in income, he said, that prompted him to apply for CSSA. 

13.As to the circumstances relating to how he came into possession of the drugs the applicant testified that on the evening of 16 August he left his wife, after having had an argument with her, and went to visit a lady friend at Mei Tin Estate Shatin. He had in his possession $5,000.  However, as he could not contact this lady friend he slept in a park at Mei Tin Estate.  On 17 August at 11 am he met with an employee of the Social Welfare Department to discuss his CSSA claim and then went to his lady friend’s residence at Mei Tin Estate, where he stayed for 4-5 hours.  Whilst there he called his drug supplier, another woman, and arranged to purchase drugs from her at her flat at Wo Yue House, Fung Wo Estate.  He paid $3,000 for the drugs but did not check them after paying for them.  It was after leaving his drug supplier’s flat that he was intercepted by the police.

14.His testimony was at times inconsistent with what he had told the police in his video record of interview.  He explained away the inconsistencies by saying at the time of his interview he did not want to implicate or cause trouble to his friends by telling the truth.

The judge’s Reasons for Verdict 

15.Early in his Reasons for Verdict the judge identified the issue in the case as being “whether the defendant had the drugs, as he claims, for his own consumption or as the prosecution allege, for trafficking?”  The judge referred to the evidence and, under a heading of “Analysis”, said:

“Analysis

7. When it comes to analysis, what it boils down to in the instant case is a question of credibility on the part of the defendant. He now tells the court that he lied to the police in the interview about certain matters, and what he said in court is the truth. The question I ask myself is what part of the defence case is worthy of belief? I’ll start my analysis with the undisputed or unchallenged evidence.”

16.The judge then referred to the undisputed facts and unchallenged evidence, part of which are described in paragraph 12 of this judgment.  One of those facts, taken from paragraph 8 of the Admitted Facts, was described by the judge as:

“(d) The retail value of the drugs is estimated to be $10,830.”

17.After examining the evidence of the applicant’s financial situation the judge concluded that the applicant and his family had fallen on hard times and even with the CSSA it would be natural for the applicant to look to other sources of income.  The judge went on to say:

“ Let’s not forget the defendant must finance his drug habit too. An odd thousand or two a month from the Social Welfare authorities is not much of a help; the pressure on him to seek additional incomes could hardly be lessen.”[1]

18.The judge then turned to the applicant’s accounts of how he had acquired the drugs the subject of the charge.  The judge rejected the applicant’s account that he gave in his video record of interview, for the reasons that the applicant now resiled from that account and also because he found that account to be inherently implausible.

19.As to the applicant’s testimony in court the judge found that account also to be implausible and rejected it.  The judge found that the applicant was making up his evidence about going to the flat of a lady friend at Mei Tin Estate and from there going to his drug supplier.  He said at paragraphs 18-19 of his Reasons for Verdict:

“18.   Undisputed is the fact that the drugs were found on him, the corollary of that is that he must have got them from someone somewhere, but certainly not from the person and in the circumstances as he had described either to court or the police.  

19.   On the other hand, there is nothing to contradict his assertion that he got the drugs for $3,000, considering in particular the extremely low purity of the drugs in question (3.54 ÷ 31.3 × 100% = 11%). Given the evidence as it is, the court accepts that the defendant obtained the drugs for $3,000. From this, the court draws the only reasonable inference that the defendant had channels of getting cheap supply of ‘Ice’.”  (Emphasis added.)

20.This inference in the last sentence, that the applicant was able to acquire Ice cheaply, must also rely on the Admitted Fact as to the retail value of the drug, as is apparent from what the judgesaid in paragraph 21 of his Reasons for Verdict:

“21. The street value of the drugs in question is about $10,830, the defendant could get them for $3,000, that would mean a handsome profit of more than $7,000. Given his economic difficulties at the time, the need to support his family and to finance his vice habit, and his knowledge of places to get cheap supply of drugs, the only reasonable conclusion I can come to is that the defendant had the drugs for trafficking.”

21.Defence counsel had made much of the point that no packaging equipment was found on the applicant.  In response to this the judge said: 

“… what I make of this is that it tells me that the defendant on this particular occasion wouldn’t want to leave some of the drugs for his own use.

23.   As a matter of fact, trafficking in dangerous drugs can be done in a myriad of ways: at the retail end, of course, one may need lots of small plastic bags, but as a courier, all the drugs can conveniently be put in a single bag. Or it could be sold in bulk to another as an intermediary.”

22.The judge went on to analyse the applicant’s evidence as to his movements after purchasing the drugs.  The judge noted that he lived in Ngau Tau Kok but when intercepted with the drugs he was in Shatin and there was no evidence that when intercepted he was on his way home.

23.The judge accepted that the applicant had a meeting at 11 am at the Social Welfare Department but, because he had otherwise rejected the applicant’s account of his movements, he found that the applicant had been roaming the streets for 7 hours before his interception.  The judge said he could not say when the applicant purchased the drugs but:

“27. … Whatever the situation might be, as the evidence now stands, the court feels safe to conclude that when he came into possession of the drugs to the moment he was stopped by the police, he had no intention to go home.

28.   To me, a genuine drug user normally would not, after getting the drugs, stay out too long so as to reduce his chances of running into a law enforcement officer; on the contrary, a drug dealer would have to be prepared to take the risk of arrest to stay out as long as it takes to complete his drug dealing activities.”

24.The judge then turned to the purity of the Ice which he noted was unusually low.  He said:

“29.   Lastly, I might as well mention about the low purity of the drugs in the instant case which is rather unusual in that most cases involving ‘Ice’ that I came across in the past, the drugs are usually of very high purity (mostly 90% or above).”

25.The very low purity in fact caused the drugs to have a yellowish appearance instead of the usual whitish appearance.  The judge referred to the applicant’s evidence that given the poor quality of the Ice, it would have been unsaleable.  The judge said he did not believe the applicant when he said he did not check the drugs.  Furthermore, when he was shown the drugs during his video record of interview he did not make any mention of their yellowish colour or poor quality.  He first referred to its qualities only when he gave evidence in court.

26.On this issue the judge concluded:

“33. Though the drugs in question are obviously of very low purity, I do not think that they are unsaleable. The drugs at least got through to the defendant; if he ever thought that they were unsaleable, I would not expect him to pay $3,000 for them. This tells me one thing - there is market for the drugs in question.”

27.The judge then convicted the applicant as charged.

The judge’s Reasons for Sentence

28.The judge adhered to the sentencing guideline for Ice which is a range of 3-7 years’ imprisonment for an amount up to 10 grammes.  For 3.54 grammes the judge adopted a starting point of 53 months’ imprisonment.  There being no mitigation to justify a reduction of this starting point, that was the sentence he imposed.

The bail application

29.In support of his bail application the applicant filed an affirmation in which he set out his personal circumstances and promised, if granted bail, not to abscond and to comply with any bail conditions but without a surety.  He was on bail pending trial and he offered the same bail conditions but without a surety.  Attached to his affirmation are Preliminary Grounds of Appeal prepared by his counsel, Mr Lee.

The Preliminary Grounds of Appeal

30.In his Preliminary Grounds of Appeal Mr Lee advances four grounds of appeal.  The first ground of appeal asserts that there was a failure by the prosecution to disclose “information and/or data in relation to the market value of the methamphetamine of similar purity.”

31.The second ground of appeal complains that “The Prosecution failed to make full and proper inquiries of expert evidence to ascertain whether there was further discoverable material which might be useful to the Defence.”

32.The third ground of appeal is that the judge erred by adversely commenting that the failure of the applicant to mention in his video record of interview the appearance or poor quality of the drugs undermined his credibility.

33.The fourth ground of appeal is that the judge, in determining that the applicant intended to traffic in the drugs, erred in making a number of assumptions, one of which was that the applicant could make a handsome profit of $7,000 by selling the drugs.

34.Grounds 1, 2 and 4 rely, in different ways, for a claim that the prosecution presented a case of the applicant trafficking in drugs with a market value of $10,830 which the applicant was able to acquire for about $3,000.  This led to the inference the judge drew of trafficking for which his reasoning is set out at paragraph 21 of his Reasons for Verdict as quoted in paragraph 20 ante.  

The respondent’s submissions

35.Mr Ira Lui, Senior Public Prosecutor, appeared for the respondent and opposed the grant of bail to the applicant.  He had obtained at the request of the court and of Mr Lee a further statement from the police officer responsible for assessing the market value of drugs as at particular dates and a statement from a psychiatrist with expertise in the area of dangerous drugs. 

36.Mr Lui submitted that the two new statements did not assist the applicant.  The police officer’s statement, he argued, did not undermine her original assessment of the market value of the Ice as she was unable to assess that true value as it would have been affected by a number of factors.  But that does not mean that it could not have been sold at the value originally assessed as set out in paragraph 8 of the Admitted Facts.  Furthermore, the statement of the psychiatrist showed that the mixture was still capable of providing the user with the benefits he was accustomed to obtaining from it.

Discussion

37.A convicted person has no right of bail pending appeal. The grant of bail to a convicted person is an exceptional course for a judge to adopt and is done on one of two bases.  The first basis is that the judge is persuaded that should the applicantn ot be granted bail he will have served the entire or a substantial part of his sentence by the time his appeal is heard, thereby, in effect, rendering nugatory his right of appeal.  This is referred to as the time ground or basis of an application for bail pending appeal.  However, even on this basis an applicant must show that he has at least a reasonably arguable ground of appeal.[2]

38.The other basis on which bail pending appeal is granted is that the applicant has been able to demonstrate that he has a ground or grounds of appeal that have a high prospect of success.  This may be referred to as the merits ground of such an application.

39.The present case is complicated by the fact that the applicant pleaded guilty to possession of the dangerous drug and had he been convicted of this offence a starting point in the range of 12-18 months would have been appropriate.  A court would then have had to consider enhancement of that starting point to allow for latent risk and then reduce it by one third to allow for the applicant’s guilty plea.  Here, the low purity would affect the assessment of latent risk and it might be that a sentencing judge would make little, if any, enhancement for this factor.  Both counsel agree that the final starting point for this applicant, after any enhancement, was not likely to exceed 18 months’ imprisonment.

40.A starting point of 18 months’ imprisonment becomes a sentence of 12 months’ imprisonment after being discounted by one third for the applicant’s guilty plea.  But the actual sentence served would be only 8 months once allowance is made for the Commissioner for Correctional Service’s power to remit a prisoner’s sentence by one third for good behaviour. The applicant has spent a total time in custody of approximately 6 months.

41.The applicant’s appeal is unlikely to be brought on quickly.  The sentence being less than 7 years’ imprisonment there must be compliance with Practice Direction 4.2.  This will require a number of formalities to be completed before the application for leave to appeal is placed before a single judge.  If leave is granted the appeal will then be fixed for hearing.  All of this will take some months and a hearing before 2018 is unlikely. 

42.What this all means is that if the applicant’s conviction was quashed and if the Court of Appeal substituted a conviction for possession only or ordered a retrial on which the applicant was convicted of possession only, then if he is not released on bail now he may end up serving a sentence longer than he would receive for a possession conviction.  This does not, it seems to me, transform the application into a time based one but it is still a matter I should take into account.

43.I turn now to the grounds of appeal.  The applicant pleaded guilty to possession of the drugs the subject of the charge and claimed to be an abuser of drugs.  The only dispute was whether he was trafficking in the drugs.  The judge found he was and paragraph 21 of his Reasons for Verdict sets out a key part of his reasoning on how he reached this conclusion.  It is quite apparent from this paragraph that his reasoning was heavily dependant on the admitted fact that the market value of the drugs was $10,830.

44.No secret was made of the fact that the drugs possessed by the applicant were of very low purity.  Nonetheless, no one seems to have realized that this might be relevant to their market value.  It is clear to me that the market value as assessed by the police officer is based on the weight of the mixture, not the weight of the narcotic, and does not take into account the purity of the particular mixture possessed by this applicant.  This may not be of any consequence where the purity of the particular dangerous drug is not subject to any significant variation in the retail market place. Ironically, Ice is a drug where a very high proportion of the volume sold seems to be within quite a narrow range of very high purity but on the limited occasions where the purity is outside of this narrow range it can be dramatically outside of it, possessing quite a low level of purity.  In fact, in the expert psychiatric report prepared by Dr Char-Nie Chen she stated:

“This is a case in which the Defendant was arrested for possession of a dangerous drug, ie crystalline MA, but with a purity of 11.3%. I have never come across crystalline MA with such a low purity. In fact I am currently involved in another case with a 100% purity.”

45.Paragraph 8 of the Admitted Facts was based upon a calculation by Woman Detective Senior Inspector of Police Chung Man Ling of the Intelligence Division of the Narcotics Bureau.  In her latest statement dated 11 September 2017, that was obtained by the respondent for the purpose of these proceedings, she said:

“According to the report on the average retail prices of illicit drugs for August 2016, the average retail price for methamphetamine was HK$346 per gramme.”

46.She reached her figure of $10,830 for the market value of the drugs in this case by simply multiplying 31.30 by 346.

47.This figure for the average retail price is based upon an average purity that in the period January 2016 to March 2017 was mostly between 95 and 98%.  It was only below 95% on 5 occasions when it was 88%, 91%, 92% (on two months) and 93%.  Whilst recognizing that the drugs in this case are substantially below the average purity she is unable to give an assessment of their true value as the drug price can be affected by a number of factors.

48.However, of key importance is paragraph 10 of her report where she said:

“ According to the previous reports, a packet of drug in such a low purity could have been sold in the market. Having referred to the available reports between January 2016 and March 2017, there were 7 other police cases with exceptionally low purity of the methamphetamine seized as in this case (purity level around or below 15%), ranging from approximately 6% to 14%.”

49.She then listed the seven police cases but only in four of them were the prices per gramme known.  In these four cases the quantities were 13.95 grammes, 3.23 grammes, 26.3 grammes and 23.17 grammes with respective purities of under 14%, under 13%, under 10% and under 11%.  The price per gramme for each of these quantities when purchased by the offender was $143, $108, $95 and $99 respectively.

50.It is clear that purity does affect market price when purity is known to be much less than the norm.  That is consistent with common sense and is only what one would expect.  In two of the cases mentioned by WDSIP Chung a similar level of purity to that of the drugs possessed by the applicant in the present case attracted a price per gramme of only $95 and $99.  If these prices were used for the applicant’s quantity of Ice then it would mean that the market value of the drugs he possessed was about $3,000 which is the price the judge accepted that he paid for them.

51.Thus, it can be seen that paragraph 8 of the Admitted Facts provided a misleading picture of the market value of the drugs possessed by the applicant.  It was correct for mixtures that possessed the average level of purity prevalent at that time but that was a level of purity that was completely different from the level of purity of the drugs in the present case.

52.However, paragraph 8 is an admitted fact and that cannot be ignored.  But, if the Court of Appeal was persuaded that, in the circumstances, it would be unjust to allow the prosecution to rely upon it, it could grant leave to the applicant to withdraw his admission of this fact.

53.On the assumption that the admitted fact was withdrawn or supplemented by other facts which properly qualified it and placed it in its proper context, then the grounds of appeal which relate to the judge’s reasoning in inferring that the applicant was trafficking in the drugs found in his possession, in my view, have a high prospect of success. 

54.The problem of the status of this piece of evidence being an admitted fact does not arise in respect of Mr Lee’s first ground of appeal which is the ground of appeal on which he primarily relies for the purpose of the bail application.  Mr Lee’s submission in respect of this ground of appeal is that if the prosecution had properly discharged its disclosure obligation then defence counsel may not have agreed to admit paragraph 8 or not agreed to admit it in its present form.  This ground of appeal, I am satisfied, also has high prospects of success in the Court of Appeal.

Conclusion

55.For these reasons I granted the application and released the applicant on bail on the same terms that he was on prior to his conviction but without the need for a surety.

56.Before concluding this judgment I would like to record my appreciation to all those involved in speedily obtaining for me the information I requested in the earlier hearing.  I am particularly indebted to WDSIP Chung and Dr Char-Nie in responding so urgently to my request for assistance.

Mr Derek Wong SPP of the Department of Justice, for the respondent (On 24 August 2017)

Mr Ira Lui SPP of the Department of Justice, for the respondent (On 25 July and 20 September 2017)

The applicant appeared in person (On 25 July and 24 August 2017)

Mr Lee Kwok Chuen Victor, assigned by the DLA, for the applicant (On 20 September 2017)

[1] Paragraph 11 of the Reasons for Verdict

[2] See HKSAR v Lau Man Kin [2010] 1 HKLRD 336