HKSAR v. Khan Amjed

CACC 247/2017

[2018] HKCA 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 247 OF 2017

(ON APPEAL FROM DCCC NO 1057 OF 2016)

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J U D G M E N T

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1.The applicant (D1 at trial) faced trial in the District Court before HH Judge Woodcock (“the judge”) on two charges of trafficking in a dangerous drug (or dangerous drugs), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charges were as follows:

(i)   Trafficking in 18.03 grammes of cannabis in herbal form and 2.84 grammes of a crystalline solid containing 2.74 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Charge 1);

(ii)   Trafficking in 89.12 grammes of cannabis in herbal form (Charge 2).

2.The applicant offered to plead guilty to the lesser charges of simple possession but that offer was not accepted by the prosecution[1]. Accordingly, he was tried for the offences of trafficking.  On 28 June 2017, the applicant was convicted as charged on both charges.  On 3 August 2017, he was sentenced to an overall term of 3 years and 8 months’ imprisonment.

3.On 11 August 2017, the applicant filed a Form XI Notice for leave to appeal against both conviction and sentence.  The leave application regarding conviction is confined to the “Ice” component of Charge 1 only.

4.On 22 June 2018, the applicant applied before me for bail pending appeal.  The application was refused.  The earliest date for his projected release is expected to be 4 December 2019.

The prosecution case

5.On 23 August 2016, police officers, acting upon information that some dangerous drugs were concealed in a flat at Lai Man Court, Shau Kei Wan (“the flat”), of which the applicant and his wife (D2 at trial) were the joint occupiers, went to the said flat to conduct a search.  At 2:32 pm, PW1 and PW2 saw the applicant and his wife leaving the main entrance of the building and walking out onto the podium.  They intercepted them but neither the applicant nor his wife would remain still and cooperate, so much so that they both had to be pressed onto the ground and physically subdued.

6.Both the applicant and his wife were then searched.  Inside the applicant’s waist bag was found a re‑sealable plastic bag containing 4 plastic bags (of almost equal weight[2]), three of which contained cannabis and one of which contained “Ice”, which collectively formed the subject matter of Charge 1.  Under caution, the applicant admitted that the dangerous drugs were his.  Also found on the applicant was $940 in cash and two mobile telephones[3].

7.On a search of the applicant’s wife, some cannabis in herbal form and some cannabis resin were found in her handbag and brassiere respectively.  She was in possession of a sizeable amount of $10,870 in cash[4]. She was ultimately convicted of trafficking in the cannabis found on her[5] and sentenced to 7 days’ imprisonment.  She has not appealed against either conviction or sentence.

8.Upon a subsequent search of the flat, there was found[6]:

(i)   In the refrigerator: cannabis in herbal form, the subject matter of Charge 2[7], on which only the applicant’s fingerprints were found[8];

(ii)   On a bedroom shelf: three “Ice” bottles or pipes;

(iii)   On a bed: a wooden box containing a small pair of scissors, a cutter, a roll of plastic wrap, a lighter and 25 re‑sealable small plastic bags.

9.Neither the applicant nor his wife made any admissions to trafficking.  The prosecution averred that neither of them was a drug addict or user of drugs and that the applicant was trafficking in the dangerous drugs, the subject matter of Charges 1 and 2, on the basis of circumstantial evidence[9]. The value of the cannabis and “Ice” found on the applicant’s person was $3,966 and $948 respectively, while the cannabis in the flat was valued at $19,606.

Defence case

10.Although the applicant did say in his video-recorded interview, which was conducted in the presence of a lawyer, that he did not know there was “Ice” in his waist bag[10], he subsequently admitted at trial to possession of all of the drugs found in the waist bag and in the flat, claiming that they were all for his own consumption (and not for sharing with other persons).  He said that at the time of arrest he and his wife were going to a friend’s home in Tung Chung, which he regularly visited two or three times a month to consume dangerous drugs[11]. On the occasion of his arrest, he was intending to stay at the friend’s home for four or five days in order to consume the drugs found on him.  He had however not brought along any clothes or toiletries for himself because he never brushed his teeth and seldom changed his clothes[12].  He also produced some documents[13] to show that he had been suffering from diabetes and dyslipidemia for some six years.  He said that taking cannabis and “Ice” helped alleviate some of his pain[14].  He maintained it was cheaper to buy dangerous drugs in bulk[15].

Reasons for verdict

11.The judge noted that the issue was whether the applicant was trafficking in the dangerous drugs in question or whether he possessed them for his own consumption[16]. In that regard, she noted that the mere fact that some of the dangerous drugs were found on him on the street did not necessarily mean that he was trafficking[17].

12.In rejecting the applicant’s evidence, the judge did not believe that he would regularly take a lengthy journey from his home in Shau Kei Wan to Tung Chung in order to consume dangerous drugs for the alleged purpose of relieving pain[18], in circumstances where no apparatus for inhaling such dangerous drugs was found on his person upon arrest[19]. The judge also noted that the applicant was in possession of a considerable amount of cannabis which far exceeded what he might need for his own consumption[20]. The judge made a specific finding that the applicant had fabricated his so‑called “staycation” excuse to try and explain why he should have had such a large quantity of dangerous drugs on his person[21]. The judge did not believe that the applicant was an habitual user of dangerous drugs.  He was found in possession of nearly $25,000 worth of dangerous drugs in respect of both charges when he was supposedly existing on CSSA.

13.In the result, the judge found that the only reasonable inference to draw was that the applicant was trafficking in the dangerous drugs concerned.

Reasons for sentence

14.The applicant was born in Hong Kong in 1980, with eight drug-related previous convictions including five for trafficking and three for possession of dangerous drugs.

15.In passing sentence, the judge referred to the sentencing guidelines in Attorney General v Ching Kwok Hung[22] and HKSAR v Capitania[23] (in respect of “Ice”), and Attorney General v Tuen Shui Ming & Anor[24] (in respect of cannabis).

16.As for Charge 1, the judge adopted the so‑called ‘combined approach’, choosing the more potent drug, namely “Ice”, as the basis of determining the related starting point, which she stipulated as 3½ years’ imprisonment.  She then enhanced the starting point by 1 month to account for the fact that cannabis was being trafficked at the same time, making a notional sentence after trial of 3 years and 7 months’ imprisonment.

17.In respect of Charge 2, the judge adopted a starting point of 4 months’ imprisonment.

18.Having addressed the principle of totality, the judge ordered 1 month of the sentence on Charge 2 to be served consecutively to the sentence on Charge 1, resulting in an overall sentence of 3 years and 8 months’ imprisonment.

Grounds of appeal against conviction

19.Mr McGowan submits that whereas the cannabis may have been in merchantable quantity, the “Ice” was not.  The judge in her reasons has unfortunately conflated the cannabis and the “Ice”, without properly addressing whether the “Ice”, in its relatively small quantity, could have been for the applicant’s own consumption.  Her reasons for verdict do not sufficiently address the possibility that he was an “Ice” abuser and that, whatever his purpose with the cannabis was, it could not be said to be the only reasonable inference that the “Ice” was for trafficking.

Grounds of appeal against sentence

20.In respect of sentence, it is argued that the sentence should be reduced because of the applicant’s assistance to the authorities.

Respondent’s submissions

21.Ms Jasmine Ching, on behalf of the respondent, opposed the application for leave to appeal against conviction.  She submits that, in drawing the inference against the applicant for trafficking in all the dangerous drugs in Charge 1 including the “Ice”, the judge carefully considered the circumstantial evidence, noting that each package of the drugs was of similar weight.  The judge did not believe that the applicant was an habitual drug user[25]. Once the judge rejected the applicant’s evidence that he was taking the drugs for a four or five‑day “staycation” in the New Territories, there was no other explanation other than trafficking as to why he would have been taking these drugs away from the flat.  She also makes the point that the applicant could not reasonably have afforded the quantities of dangerous drugs in question, given his reliance on CSSA.

22.However, Ms Ching did not oppose the application for leave to appeal against sentence on the basis of the applicant’s overall assistance provided to the authorities.  I do not propose to go into that assistance in this judgment.  Ms Ching accepts there are reasonably arguable grounds for appeal, even though she takes issue with certain matters put forward by the applicant.  I do not need to address those matters at this stage, since they will no doubt be canvassed at the appeal.

Consideration

23.Mr McGowan argues that given the quantity of “Ice”, the inference of trafficking was not the only reasonable inference to be drawn from the known facts: it could just as reasonably have been for the applicant’s own consumption.  However, this is the Court of Appeal not the court of trial.  The judge had the advantage over any appellate court of having heard the applicant testify in the context of the evidence as a whole.  She did not believe him.

24.The judge clearly conducted an extensive evaluation of the applicant’s evidence and gave cogent reasons why she did not believe him.  I cannot at this stage see any appellate court, which has not seen or heard the evidence, disagreeing with her findings.  That was, after all, her function.

25.I accept that the quantity of “Ice” was relatively small, but that does not mean that it must have been for personal consumption.  The judge addressed the factors which drove her to the only reasonable inference that it was intended for trafficking and I see no reasonably arguable grounds to impugn those findings.  The most telling finding perhaps was that the applicant was not leaving the flat with these two kinds of drugs to take on a four or five‑day “staycation” in Tung Chung.  Once the judge disbelieved the applicant and gave sound reasons for rejecting that piece of evidence, then I cannot see what other purpose one might reasonably infer from his carriage of these drugs in public away from the security of the flat other than the purpose of trafficking.  The fact that the applicant exists on CSSA merely fortifies that inference.  The only other possibility, which the judge also dealt with, and which was hardly very realistic, was the possibility of mistake.

26.The application for leave to appeal against conviction is refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

27.In relation to leave to appeal against sentence, the respondent accepts that there are reasonably arguable grounds of appeal against sentence in respect of the assistance given by the applicant to the authorities.  On that basis, I shall grant leave to appeal against sentence.

Legal aid certificate

28.Mr McGowan makes application for a legal aid certificate on behalf of the applicant.  In light of the evidence as to the applicant’s reliance on CSSA, when not in custody, I shall grant such a certificate, but it will be confined to the appeal against sentence only.

Ms Jasmine Ching SPP, of the Department of Justice, for the Respondent

Mr James HM McGowan, instructed by Francis Kong & Co, for the Applicant