HKSAR v. Patwary Mezba Uddin Opu

HCMA 341/2018

[2018] HKCFI 2287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 341 OF 2018

(ON APPEAL FROM KCCC 3980 OF 2017)

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J U D G M E N T

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1.The appellant was found guilty of an offence of “Trafficking indangerous drugs” after trial by Magistrate Stephanie Tsui (“the magistrate”). He was sentenced to 20 months' imprisonment.

2.The appellant now appeals against his conviction and sentence.

3.The appellant was represented by the Duty Lawyer Service in the court below.  In this appeal, the appellant acted in person.

APPEAL AGAINST CONVICTION

The prosecution case

4.The appellant is a non-refoulement claimant.

5.About 5:00 pm on 18 December 2017, PC 10054 (PW1) and his teammates (PWs 2 and 4) entered Flat B5, 3^rd Floor, Mirador Mansion in Tsim Sha Tsui (“      the Flat”) since they found its metal gate being left open.  The Flat was divided into several sublet rooms and all the room doors were locked.

6.PW1 saw the appellant entering the Flat and stopped him for enquiry.  The appellant claimed that he was looking for a friend but had no means to contact that friend. 

7.Upon search, PW1 found a blue bag (Exhibit P1) between the appellant’s undershirt and rib cage.  Inside the blue bag, PW1 found 16 strips of black substances wrapped in plastic (Exhibit P2), a resealable plastic bag containing 30 capsules (Exhibit P3) and another resealable plastic bag containing white powder (Exhibit P4).

8.Government Chemist later confirmed that Exhibits P2 contained a total of 103.36 grammes of cannabis resin; Exhibit P3, a total of 2.06 grammes of a solid containing 1.17 grammes of cocaine; and Exhibit P4, 0.30 gramme of a solid containing 0.13 gramme of cocaine.

The defence case

9.The appellant elected to give evidence, but did not call any defence witness.

10.The appellant claimed that he went to the Flat to take his meal because he had a meal plan there.  He was searched and handcuffed by PW1.  PW1 informed the appellant that he was a policeman and knew that the appellant had drugs.  The appellant surrendered the cocaine which he bought for $300 for self-consumption (namely Exhibit P4).

11.The appellant denied physical possession of Exhibits P2 and P3 and challenged their chain of evidence.

The magistrate’s findings

12.In her Statement of Findings, the magistrate gave her reasons[1] as follows:

“ 24. It was the Defence case that P2 and P3 were not found on the Defendant at the time of the search and that the items did not belong to the Defendant. It was also the Defence’s contention that there was doubt as to whether other persons have had access to P2, P3 and P4 from the time they were found to when they were sealed at the police station. It was suggested that the Prosecution has failed to prove the chain of evidence of P2, P3 and P4 to a standard of beyond reasonable doubt.

25. The Prosecution and the Defence agreed that the Defendant was in possession of P4, and that he possessed P4 for self-consumption.

26. PW1 gave evidence that he found P1 containing P2, P3 and P4 roughly between the Defendant’s undershirt and rib cage. PW1 seized P1, P2, P3 and P4. P1 to P4 were in his custody until they were sealed in temper proof bags in the presence of PW3 and the Defendant. The sealed temper proof bags containing P1 to P4 were given to PW3 who locked them in the dangerous drugs cabinet in the police station.

27. The Defence challenged the chain of exhibits of P1 to P4.

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37. I have carefully considered the evidence given by PW1, PW2, PW3 and PW4 and of the Defence’s submissions on their evidence. I find that there is no inherent improbability or material inconsistencies in their evidence. I find PW1, PW2, PW3 and PW4 to be honest and reliable witnesses. I accept the evidence of PW1, PW2, PW3 and PW4.

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41. It is the Defendant’s evidence that he handed P4 to PW1 and immediately admitted to possessing P4. PW1 subsequently pressed the Defendant for more information on the seller of P4. The Defendant explained to PW1 that he did not have the contactnumber of the seller, that he ‘only knew his face’. It is inherentlyimprobable that PW1 did not immediately record the fact that the Defendant took P4 from his trousers and gave it to PW1 or the admission made by the Defendant. The police were conducting an anti-narcotic operation, suspected dangerous drugs were handed over by the Defendant and admission was made by the Defendant, the Defence case was in effect that PW1 withheld evidence of the Defendant’s admission which I find incredible.

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45. I have carefully considered the evidence of the Defendant. Based on my analysis of his evidence, I find that there are inherentimprobabilities in his evidence. I do not find him to be an honestor reliable witness. I do not accept his evidence. I remind myselfthat even if I do not accept the Defendant’s evidence, it does notmean that the Defendant is guilty. I remind myself that the burden rests on the Prosecution to prove beyond reasonable doubt all elements of the offence.

46. Based on my analysis of the evidence, I am satisfied thatthe Prosecution has proved beyond reasonable doubt the chain of exhibits of P1, P2, P3 and P4. I accept P1, P2, P3 and P4 were in PW1’s custody from when they were seized to 2122 hours when they were sealed. The exhibits were within PW1’s sight at all times. I am satisfied P1, P2, P3 and P4 had not been illegally tempered with from when they were seized from the Defendant to when they were produced as exhibits in court.

47. On the issue of whether the Defendant was in possession of P1, P2, P3 and P4 :-

48. I have considered and accepted PW1 to PW4’s evidence. I am satisfied that P1 and P4 were found between the undershirt and rib cage of the Defendant during a body search conducted by PW1 in the corridor of the Flat. P2, P3 and P4 were found inside P1.

49. In considering whether the Defendant had knowledge of P1, P2, P3 and P4. P1 containing P2, P3 and P4 were found under layers of clothing, concealed between the Defendant’s undershirt and rib cage. The Defendant clearly knew he was carrying P1 containing P2, P3 and P4. The Defence admitted that the Defendant was in possession of P4 which was a re-sealable plastic bag containing cocaine, and that P4 was for his own consumption. P2, P3 and P4 were placed together inside P1 and concealed under Defendant’s clothes. It is obvious that Defendant knew he had physical custody and knowledge of the cocaine and cannabis resin in his possession. I find beyond reasonable doubt that the Defendant was in possession of P1, P2, P3 and P4.

50. I have considered that there is no presumption of trafficking once possession is proved. It is not disputed that there is no evidence that the Defendant procured, displayed, supplied or passed on P1, P2, P3 or P4.

51. I have considered that the Defendant’s mere possession of P1, P2, P3 and P4 in the Flat it is not sufficient to constitute dealing with or trafficking in the dangerous drugs. Mere possession cannot give rise to an inference of trafficking.

52. In considering if there is sufficient evidence to draw inference that the Defendant was dealing with dangerous drugs for the purposes of trafficking, I have considered the circumstances at the material time including the time and place where the incident occurred, the purpose, use and intent of the Defendant whilst in possession of the dangerous drugs and the quantity of drug seized.

53. The Defendant was found in the Flat at 3pm. He gave conflicting accounts of the reason he was found in the apartment. His first response to PW1 was that he was looking for his friend at the Flat. Upon further questioning as to where his friend lived and on the means of contacting his friend he answered ‘no’. He gave evidence at trial that he had a meal plan in the Flat. His evidence as to the reason for being in what the Defendant described as a hotel was clearly contradictory.

54. The dangerous drugs found on the Defendant consisted of 16 packets of cannabis resin totalling 103.36 grammes and 30 capsules each containing cocaine, a total of 1.17 grammes of cocaine. The Defendant admitted that P4 was for his self- consumption. P4 was in solid white powder form put into a re-sealable plastic bag. It is clearly in a different packaging from P2 and P3.

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56. The Defendant is a Form 8 holder on recognizance. He was unemployed at the time of his arrest. He gave evidence thathis sole source of support is from the International Social Servicein the form of meal coupons of HKD 1200 in value and HKD 200 cash per month. The value of the drugs was significant at HKD 9610. According to the Defendant’s evidence he has no income or discernible savings that would make this quantity of drugs likely to have been bought by him.

57. Based on the analysis of the individual packaging of P2 and P3, the value and quantity of drugs and the Defendant’s financial situation I infer that he was in possession of P2, P3 and P4 for the purposes of trafficking. There is no other reasonable explanation, I find it to be the only irresistible inference.

58.       The Prosecution has proved beyond reasonable doubt all elements of the charge and I convict the defendant as charged.”

Grounds of appeal

13.The appellant said he does not understand why he was convicted of “trafficking” since he was not buying or selling any dangerous drugs.  Furthermore, he said no DNA or fingerprint of his was found on the drugs.

My considerations

14.Mr Cheng for the respondent submitted that the lack of DNA or fingerprint evidence is neither here nor there.  It does not weaken the prosecution case or strengthen the defence case.  I agree.

15.I have explained to the appellant in open court that the term “trafficking” as defined in the Dangerous Drugs Ordinance (Cap 134) includes “possessing the dangerous drug for the purpose of trafficking”.  It matters not if the evidence does not show any “buying” or “selling” of dangerous drugs.

16.The magistrate has thoroughly evaluated the evidence of both the prosecution and defence.  Her analysis is sound and with proper evidential basis.  As a tribunal of fact, she came to a firm conclusion that the appellant was in physical possession of Exhibits P2 to P4 and that he possessed Exhibits P2 and P3 for the purpose of trafficking.  I see no reason to disturb the magistrate’s findings.

17.I dismiss the appeal against conviction.

APPEAL AGAINST SENTENCE

18.In sentencing the appellant, the magistrate gave her reasons[2] as follows:

“ 59. The background report of the Defendant indicated that theDefendant was homeless. On his own submission, the Defendant had no gainful employment after completing his education in 2008. He was supported by his family. He came to Hong Kong in 2015 and has relied on the humanitarian assistance from the International Social Service since 2016.

60. According to the Defendant, he started abusing cannabis and cocaine in Bangladesh in 2014 and 2015 respectively. He continued to abuse dangerous drugs in Hong Kong.

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63. The present offence involved two types of dangerous drugs, namely cocaine and cannabis resin. I considered the authority HKSAR v Yip Wai-yin & Anor [2004] HCA 150; [2004] 3 HKC 367. The authority set out the individual and combined approach to sentencing and provided that the combined approach looks at the overall quantity of the drugs, taking a global view, the court is then able to assess realistically and fairly the appropriate sentence. The Court of Appeal was of the view that the combined approachwill often be the correct one to enable the judge to sentence fairly, realistically, and in a commonsense manner. I find the combined approach the appropriate one in the present case.

64. The more serious dangerous drug in the present offence iscocaine. I considered the tariffs established by R v Lau Tak-ming [1990] 2 HKLR 370 where the range of sentences for a quantity of 0 to 10 grammes is a starting point of between 2 to 5 years. Court of Appeal authority has indicated that the guidelines for trafficking in heroin is equally applicable to cases involving the trafficking of cocaine. The present offence involved 1.3 grammes of cocaine. I impose a sentence of 22 months.

65. In considering the appropriate sentence for the traffickingof 103.36 grammes of cannabis resin, I considered the guidelines established in AG v Tuen Shui Ming [1995] HKCA 36; [1995] 2 HKC 798 where for the trafficking of up to 500 grammes the court may sentence as it thinks fit. The amount of cannabis resin involved is not an insignificant amount which warrants the court to consider ignoring for the purpose of sentencing. An appropriate upward adjustment is 2 months.

66. The Prosecution and the Defence agreed that 0.13 grammes of cocaine was for the Defendant’s own consumption. 0.13 grammes is only a small proportion of the 1.3 grammes of cocaine and 103.36 grammes of cannabis resin. I considered the authority HKSAR v Chow Chun-sang CACC 135/2011. The Court of Appeal is of the view that, where part of the quantity of drugs is proved to be for own consumption, a discount can be applied to the starting point to reflect the fact. The discount to be applied may be between 10 to 25 percent. Factors that may affect the discount should include the quantity of drugs, where there is evidence that the drugs were sold for financial reasons, as well as the background and criminal record of the Defendant.

67. 0.13 grammes is a small proportion of the dangerous drugs trafficked. 1.17 grammes of cocaine were packaged in 30capsules and the cannabis resin were packaged into 16 individualstrips which the court found the Defendant to have been trafficking. The Defendant has a previous conviction of Possession of Dangerous Drugs. I considered a 15 percent reduction in sentence to be appropriate.

68. The Defendant was convicted after trial.  There are no special circumstances in his background that warrants a reduction in sentence.  The Defendant is sentenced to 20 months’ imprisonment.”

Grounds of appeal

19.The appellant claimed that he does not know the magistrate’s reasons for sentence.  I have directed him to the relevant pages of the Appeal Bundle.  He claimed that he is unable to read English but admitted that he did not ask anyone (including the Welfare Officer) for help after receiving the Appeal Bundle. 

My considerations

20.Mr Cheng for the respondent has properly and fairly pointed out that there is a slight error made by the magistrate in the process of sentencing.  It was an admitted fact at trial that the appellant was in possession of Exhibit P4 (the single pack of 0.13 gramme of cocaine) for self-consumption[3]. Hence, according to the comments made by the Court of Appeal in HKSAR v Gurung Laxman [2017] 3 HKLRD 483, this court, when hearing the appeal, may consider (and has the power to do so under sections 27 and 119(1) of the Magistrates Ordinance, Cap 227) adding a separate charge of “simple possession” to cover Exhibit P4 ^[4].

21.In my view, the quantity of the cocaine contained in Exhibit P4 is so negligible that it would not have made a difference in the starting point even if the magistrate had followed the practice suggested in GurungLaxman.  Had there been a separate “simple possession” charge in relation to Exhibit P4, it is almost certain that its sentence would be imprisonment rather than other forms of punishment; and that its prison term would be served concurrently with the sentence of the “trafficking” charge.  I see no injustice caused to the appellant.  In fact, the appellant received an additional 15% discount for self-consumption in relation to Exhibit P4, despite its quantity not being a significant portion of the narcotics found in the present case[5].

22.The appellant should consider himself fortunate that the magistrate did not enhance the sentence based on his immigration status [6] . Drugs-related offences (especially “trafficking”) clearly have a serious detrimental effect on the community at large.  As correctly pointed out by Mr Cheng, the magistrate had all the reasons to enhance the sentence and should have perhaps done so.

23.The sentence of 20 months’ imprisonment imposed by the magistrate is not a day too long for the appellant.  I see absolutely no reason to interfere with it.  The appeal against sentence is also dismissed.

Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for the respondent

The appellant appeared in person