HKSAR v. Wong Pui Wo Kenny

Case No.CACC 146/2017[2018] HKCA 718[2018] 5 HKLRD 424

Court

Court of Appeal

Date09 Oct 2018

Judge—

Case Document

100%Judiciary

CACC 146/2017

[2018] HKCA 718

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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BETWEEN
	HKSAR	Respondent
and
	WONG PUI WO KENNY (黃沛和)	Appellant

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Before: Hon Macrae VP, McWalters JA and Zervos JA in Court

Date of Hearing: 9 October 2018

Date of Judgment: 9 October 2018

Date of Reasons for Judgment: 22 October 2018

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.The appellant 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 appellant unlawfully trafficked in 31.30 grammes of a crystalline solid containing 3.54 grammes of methamphetamine (“Ice”).

2.The appellant pleaded not guilty to this charge but guilty to possession of a dangerous drug. This plea was not accepted by the prosecution and the applicant was tried in the District Court before District Judge Sham (“the judge”). On 17 May 2017, he was convicted of the unlawfully trafficking charge. 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. On 20 September 2017, the appellant was granted bail pending appeal and, on 29 June 2018, leave was granted to him to appeal his conviction on the first to third of his Perfected Grounds of Appeal.[1] At the hearing of the leave application, the appellant abandoned both his appeal against sentence and his fourth ground of appeal.

4.The respondent, who appears by Mr Ira Lui, Acting Assistant Director of Public Prosecutions, conceded the appeal and did not seek a retrial. He asked this court to substitute for the appellant’s conviction of unlawfully trafficking a conviction of possession of a dangerous drug and sentence him accordingly. Mr Victor Lee, who appears for the appellant, did not oppose this proposed course of action.

5.At the hearing of the appeal, we allowed the appeal, quashed the conviction for unlawfully trafficking in a dangerous drug and in substitution for it convicted the appellant of possession of a dangerous drug. After hearing from the parties, we sentenced the appellant for this offence to the payment of a fine of $20,000. We said we would hand down our reasons for our orders at a later date. These are our reasons.

The prosecution case

6.The prosecution case consisted only of Admitted Facts with no live witnesses being called. The Admitted Facts revealed that the appellant 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 appellant’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 Ice.

7.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.”

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

The defence case

9.The appellant gave evidence but called no witnesses. Parts of the appellant’s evidence were not challenged, such as his claim that he had been an Ice abuser for 15-16 years and his testimony 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, his receipt of which was the subject of Admitted Facts.

10.The appellant testified to the circumstances in which he came into possession of the drugs, claiming that 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.

The judge’s Reasons for Verdict

11.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?” He 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.”

12.The judge then referred to the undisputed facts and unchallenged evidence, specifically mentioning paragraph 8 of the Admitted Facts, which was an admission that:

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

13.After examining the evidence of the appellant’s financial situation, the judge concluded that the appellant and his family had fallen on hard times and even with the CSSA it would be natural for the appellant 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.”[2]

14.The judge then turned to the appellant’s account of how he had acquired the dangerous drugand said that he found the appellant’s testimony to be implausible and rejected it. But he accepted the appellant’s claim that he purchased the Ice for $3,000. He said at paragraph 19 of his Reasons for Verdict:

“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.)

15.This inference in the italicised sentence, that the appellant 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.”

16.The judge also found that the appellant had been roaming the streets for 7 hours before his interception. Of this, the judge said:

“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.”

17.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).”

18.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 appellant’s evidence that given the poor quality of the Ice, it would have been unsaleable. 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.”

19.The judge then convicted the appellant of unlawfully trafficking in the Ice.

The Perfected Grounds of Appeal

20.In advancing his Perfected Grounds of Appeal, Mr Lee relied upon the three grounds of appeal for which the appellant was granted leave. The first ground of appeal complains that paragraph 8 of the Admitted Facts is misleading and inaccurate and seeks leave to withdraw that admission, asserting that the judge wrongly relied on it to “to make findings or draw inference against the Defendant.”

21.The second 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.”

22.The third 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.”

23.Grounds 1, 2 and 3 rely, in different ways, for a claim that the prosecution presented a case of the appellant unlawfully trafficking in a dangerous drug with a market value of $10,830 which the appellant was able to acquire for about $3,000. This led to the judge drawing an inference of trafficking for which his reasoning is set out at paragraph 21 of his Reasons for Verdict as quoted in paragraph 15 of this judgment.

The application to adduce evidence on appeal

24.In support of these grounds of appeal, the appellant applied under section 83V(1) of the Criminal Procedure Ordinance, Cap 221, to adduce as fresh evidence on appeal two affirmations by him to which were exhibited a statement a Woman Detective Senior Inspector of Police (WDSIP) Chung Man Ling which explained how the market value of the Ice, as set out in paragraph 8 of the Admitted Facts, was calculated. Also exhibited was an expert report by a psychiatrist, Dr Char-Nie Chen. This statement related to the drug, Ice, and whether purity of this low level was commonly encountered, and what drug benefit would be derived from it. By his Notice of Motion he also sought leave to withdraw paragraph 8 of the Admitted Facts.

25.Mr Lui appeared for the respondent and did not oppose the application to adduce evidence on appeal. This evidence had in fact been obtained by him and disclosed to Mr Lee.

26.Being satisfied that it was in the interests of justice to receive this evidence we granted the application.

The respondent’s submissions

27.As previously mentioned, Mr Lui conceded the appeal. He accepted that the fresh evidence now adduced by the appellant on his appeal was available to the prosecution at trial and was disclosable by the prosecution to the appellant in fulfilment of its common law duty of disclosure.

28.Mr Lui recognised that had the fresh evidence been available to the defence before the conclusion of the trial it is likely that the judge would have allowed an application to withdraw the admission in paragraph 8, and therefore he does not oppose the appellant’s application to withdraw it now.

29.In view of the particular features of this case, Mr Lui did not find it appropriate to invite us to apply the proviso and, given that the strength of the prosecution case would unlikely be materially different upon a retrial, he did not seek a retrial of the appellant upon the charge of unlawfully trafficking in a dangerous drug. Instead, he asked this court to exercise its power under section 83A of the Criminal Procedure Ordinance, Cap 221, and convict the appellant of the offence of possession of a dangerous drug, the offence to which the appellant had pleaded guilty on his arraignment.

Discussion

30.As the appellant 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 in reaching 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.

31.Paragraph 8 of the Admitted Facts was based upon a calculation by WDSIP Chung Man Ling of the Intelligence Division of the Narcotics Bureau. In her statement dated 11 September 2017, 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.”

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

33.It is apparent from the later statement of WDSIP Chung that her assessment of the market value was based on the weight of the mixture, not the weight of the narcotic, and did not take into account the purity of the particular mixture possessed by this appellant. 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.

34.Normally, Ice is sold with a very high level of purity. In the period January 2016 to March 2017 the level of purity was mostly between 95 and 98% and was below 95% on only 5 occasions when it was 88%, 91%, 92% (on two months) and 93%. 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, i.e., 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.”

35.Thus, it would seem that on the limited occasions where the purity is outside of this narrow high level of purity range it can be dramatically outside of it, possessing a very low level of purity. The reports received by WSIP Chung would suggest that Ice of this low level of purity is still saleable but the low level of purity affects its market price. In four cases involving quantities of Ice of 13.95 grammes, 3.23 grammes, 26.3 grammes and 23.17 grammes that had 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 only $143, $108, $95 and $99 respectively.

36.The information before us clearly shows 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 appellant in the present case attracted a price per gramme of only $95 and $99. If these prices were used for the appellant’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.

37.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 appellant. 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.

38.The appellant applies to withdraw the admission contained in paragraph 8. We are satisfied that had the material now disclosed to the appellant been known to him at trial, the admission would not have been made. Indeed, the prosecution would have had to review the case it would present against the appellant.

39.However, it is not necessary for the appellant to withdraw his admission to succeed on appeal. Having demonstrated that:

(i) the admitted fact is inaccurate and misleading when applied to Ice of the appellant’s level of purity;

(ii) reliance on the admitted fact was a key part of the judge’s reasoning in drawing an inference of trafficking;

(iii) the admission would never have been made had the true position about the market value of Ice of this level of purity been known; and

(iv) the true position was only not known because of a failure by the prosecution to properly fulfil its duty of disclosure,

we are satisfied that the conviction is unsafe and the appeal must be allowed.

40.We allowed the appeal, quashed the conviction of unlawfully trafficking in a dangerous drug and in its place substituted a conviction of possession of a dangerous drug.

41.It then fell to us to sentence the appellant for this less serious offence.

42.The normal starting point for this offence where an offender is not a candidate, as this appellant is not, for a rehabilitative sentence, is a custodial sentence in the range of 12 to 18 months.[3] We say that the appellant is not a candidate for a rehabilitative sentence because of his criminal record and the unsuccessful attempts by the courts in the past to help him to rehabilitate himself. He has been the beneficiary of both Drug Addiction Treatment (DATC) and community service orders but these have been to no avail.

43.Once it has been decided, as a preliminary issue, that a custodial sentence is appropriate for the offender then the court must conduct the three step sentencing exercise laid down by this court in HKSAR v Wan Sheung Sum.[4] The first step is to identify a starting point within the 12 to 18 months range. Having done that it then becomes necessary to consider enhancement of that starting point to allow for latent risk. Finally, this starting point must then be reduced by one third to allow for the fact that the appellant pleaded guilty to the offence.

44.In our view, the appropriate starting point for this appellant, with his criminal history, in possession of this quantity of drugs with this low level of purity,without any enhancement, is 14 months’ imprisonment.

45.Turning to the issue of latent risk we are of the view that this quantity of Ice with this low level of purity, and all the other circumstances relating to this offence, does not enable us to be sure that there was a real risk of further dissemination of the drugs. Consequently, we decline to enhance the starting point for the latent risk factor.

46.A starting point of 14 months’ imprisonment becomes a sentence of 9.33 months’ imprisonment after being discounted by one third for the appellant’s guilty plea. But the actual sentence served would be approximately 6.22 months once allowance is made for the Commissioner for Correctional Services’ power to remit a prisoner’s sentence by one third for good behaviour. So far, the appellant has spent approximately 6 months in custody.

47.The appellant has been on bail since 20 September 2017, a period of over a year. He has resumed his employment as a taxi driver and there is no suggestion that he has been other than of good behaviour during this time. Justice would not be served by returning him to prison. In all the circumstances, we are satisfied that the appropriate course for us to adopt would be to sentence the appellant to time already served if the power to impose such a sentence was immediately available to us.

48.But, regrettably, it is not. Section 54A of the Dangerous Drugs Ordinance, Cap 134, requires us to obtain a DATC report before imposing a custodial sentence on him. We have already explained in this judgment why a custodial sentence, rather than a rehabilitative one, is the appropriate sentence for this appellant. If the section drafted provided the courts with a discretionary power, rather than a mandatory obligation, then we would have declined to call for a report. But that is not an option available to us.

49.We note that this is not the first time that the way section 54A is drafted has impeded the work of the Court of Appeal. In HKSAR v Ng Hung Chi[5] Stock JA, as he then was, commented:

“2 The matter came before us for sentence on 13 March, that is the day after our judgment was handed down, but we were obliged to adjourn the hearing as to sentence because the provisions of section 54A of the Dangerous Drugs Ordinance were drawn to our attention, by which we are precluded from passing a custodial sentence in the absence of a report from the Commissioner of Correctional Services as to the appellant's suitability for cure and rehabilitation. In the unusual circumstances of this case, where it is clear that the appellant has never been, and is not now, an addict, this was an unfortunate and pointless corner into which we and the appellant were driven. We now have that report and, as expected, there is no need for any cure from addiction, for the appellant is not, nor was she, a drug dependant.”

50.Stock JA faced the same dilemma in HKSAR v Yan Suk Yin[6], where he said at pages 681J – 682B:

“… As for sentence, we are in the unusual position that s.54A of the Dangerous Drugs Ordinance (Cap.134) requires us to consider a report of the Commissioner for Correctional Services as to the applicant’s suitability for cure in an addition (sic) treatment centre. In the circumstances we have described, that is somewhat artificial; yet we would otherwise have no power to substitute a term of imprisonment. Given the quantity of drugs in respect of which the applicant was in possession and the term already served, such a substitution is inevitable. Still, there is no choice but to call for a report. Accordingly, we adjourn the issue of sentence to 20 March by which date we expect to have the report under s.54A of the Ordinance. The applicant is remanded in custody to that date.”

51.The Director of Public Prosecutions may wish to consider whether the time has come to review the way section 54A is drafted and to consider whether it should be amended so as to introduce more flexibility into its operation.

52.In complying with the terms of section 54A, we would have to remand the appellant in custody for up to three weeks in order for a DATC report to be prepared. We would be depriving him of his liberty for the preparation of an unnecessary report as well as inconveniencing all involved by requiring them to return to court solely for the purpose of then releasing the appellant from custody.

53.In these unusual and exceptional circumstances, we decided we would impose upon the appellant a non-custodial sentence. It was only due to these unusual and exceptional circumstances, that we decided to sentence the appellant to the payment of a fine of $20,000.

54.Before we conclude this judgment we would like to record our appreciation to Mr Lui for his assistance to the court throughout the various proceedings that led to the conclusion of this appeal. At the court’s request he expedited the obtaining of the statements requested by the court. After considering those statements, and the Perfected Grounds of Appeal for which leave to appeal had been given, he very responsibly decided that the proper course for him was to concede the appeal. He also brought to our attention the provisions of section 54A for which we are grateful.

Conclusion

55.Accordingly, we allowed the appeal, quashed the appellant’s conviction of unlawfully trafficking in a dangerous drug and substituted for it a conviction of possession of a dangerous drug. For the unusual and exceptional reasons explained above we sentenced the appellant for this offence to the payment of a fine of $20,000.