HKSAR v. Tang Kin Chung Harry

HCMA 79/2018

[2019] HKCFI 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 79 OF 2018

(ON APPEAL FROM ESCC 2541 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 “Possession ofa dangerous drug[1]” after trial by Magistrate Kathie Cheung (“the magistrate”). He was sentenced to 1 month’s imprisonment.

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

3.The appellant was represented by Mr Graham Harris, SC and Mr Alan Lo (privately briefed) in the court below.

APPEAL AGAINST CONVICTION

The prosecution case

4.The magistrate has succinctly summed up the prosecution case in her Statement of Findings[2] :-

“3. Police officers conducted a licence check at the premises known as Zerve Bar in the early hours of 22 July 2017. The defendant was found sitting at a table inside the premises with his wallet on the table in front of him. A small transparent plastic bag containing 0.06 grammes of a powder containing cocaine was found inside the defendant’s wallet. Under caution, the defendant denied the packet of drug belonged to him.”

The defence case

5.The appellant elected to give evidence and called a defence witness (Ms Luk) to give evidence.

6.Similarly, the magistrate summarized the defence case as follows[3] :-

“5. The defence case is that the defendant and his friends went to the Bar to celebrate a friend’s birthday. After he arrived at the Bar, he had all along put his wallet, mobile phone and other personal properties on the table without guarding them. Ms Luk had warned the defendant to guard his own properties but he ignored her advice. He was surprised when police officer found a packet of dangerous drug inside his wallet. He did not know to whom this belong and why it was inside his wallet.”

The magistrate’s findings

7.The magistrate has properly reminded herself the burden and standard of proof[4]. She has also directed herself on the appellant’s good character[5]. In her Statement of Findings, the magistrate gave her reasons as follows[6]  :-

“ 10. There is no dispute that the packet of dangerous drug was found inside the defendant’s wallet. The only issue is whether the defendant was aware of the packet of drug inside his wallet. The defence submitted that in the circumstances of this case, the court could not rule out the possibility that the packet of drug belonged to a third party who put it inside the defendant’s wallet without his knowledge.

11. The prosecution called police officer Yeung Chiu Wai to give evidence. The evidence of officer Yeung is straightforward and clear. His evidence was not seriously challenged.

12. Officer Yeung agreed that he did not mention in his notebook or witness statement that the packet of drug found inside the defendant’s wallet was put between 2 photos. He explained that if he mentioned it, he would have to mention everything in the wallet. It is apparent that he thought it not necessary to do so as it was not the crux of the matter. However, he was sure the packet was put between two photos. I accept his explanation as reasonable.

13. According to officer Yeung, when he first asked the defendant to whom the packet of drug belonged, the defendant did not answer. He agreed that the defendant made correction to this entry in his notebook to the effect that he answered “I don’t know”. However, officer Yeung did not confirm the corrected version by the defendant to be the true version. In his evidence, he maintained the defendant did not answer. And later on, he asked the defendant the same question again. If the defendant had answered officer Yeung at the outset, there would not be any need for him to ask the question again. Therefore, I accept the officer’s version.

14. I found officer Yeung an honest and credible witness. I accept his evidence and attach full weight to his evidence.

15. The defendant has the right to remain silent and not to answer the question “to whom the packet of drug belonged”. I will not draw any adverse inference from his exercising his right.

16. As far as the defence evidence is concerned, I have the following observations:

(1) It is all along the defendant and Ms Luk’s version that the defendant put his wallet on the table without guarding it. Ms Luk had warned the defendant about taking care of his own properties. It is her evidence that she had warned him twice, the last time being about 30 minutes before the licence check. If it were true, the defendant would not have forgotten where he had put his wallet as this is central to his defence. However, he did not mention it when he was asked questions at the scene after the packet of drug was found. Later that day, when he gave a voluntary statement in the police station, he was asked, amongst other questions, where his wallet was placed before he put it on the table where he was checked. He answered “I don’t remember” (Q&A 8). This is plainly inconsistent with his evidence in court. Therefore, I reject this version.

(2) There is no dispute that the Bar at that night was crowded and that there were other customers in the bar who were strangers to the defendant and his friends. An ordinary reasonable person would not casually put his/her personal property on the table without guarding it. The defendant, under cross-examination, admitted that he was aware of the risk of loss of property and that dangerous drugs could be abused in bars. Nevertheless, he said he still found it perfectly comfortable to put his personal belongings including the wallet which contained money, credit cards and ID card as well the mobile phone containing massive personal data on the table without guarding them. I consider this to be unreasonable. I do not accept this.

(3) The defendant alleged that he consumed alcoholic drinks and was drunk after having been in the Bar for one hour and he started having double vision. He also raised his voice when he was drunk. However, according to officer Yeung, the defendant did not appear to be drunk. It is clear from the conversation between them at the scene that the defendant was able to give coherent and relevant answers to the officer’s questions. When the defendant gave a record of interview at the police station a few hours later and was asked whether he was fit to do so, he did not complain about being drunk and not able to do so. Instead, he answered “I think I am fit to do so, there’s no problem”. Further, it is also clear from his answers in the record of interview that he was able to understand and answer the questions coherently. In fact, when he gave evidence in court, he admitted that even if he was drunk, he was able to control himself. I accept the defendant might have consumed some alcoholic drinks that night. However, I find he was not drunk to the extent that he was unconscious or so drunk that he did not know where he had put his wallet or he was unable to notice or take care of his wallet.

(4) The defendant said in evidence that he had no hesitation to hand over the wallet for checking by officer Yeung. However, Ms Luk said the officer lifted up the wallet from the table for checking. In other words, the defendant did not hand over the wallet as alleged. Ms Luk’s version supports officer Yeung’s version. I reject the defendant’s version is this respect.

(5) Ms Luk’s recollection of the conversation between the defendant and the officer does not tally with the defendant’s version or the officer’s version. Her versions given in chief and under cross-examination are also different. I do not consider her account to be accurate and reliable.

17. In view of the above, I consider the defendant and Ms Luk not honest and credible witnesses. I reject their evidence.

18. Based on the evidence I accepted [sic], I find the defendant had not put the wallet on the table as alleged. He had all along had possession of the wallet. The fact that a packet of drug put between two photos was found in the inner bill compartment of the defendant’s wallet supports the only irresistible inference that the packet of drug belonged to the defendant and therefore it was inside his wallet.

19. Even if I accepted defence evidence that the defendant had all along put his wallet on the table, I still reach the same conclusion that the packet of drug belonged to him for the following reason.

20. The defence suggested there was a possibility of someone putting the packet of drug inside the defendant’s wallet without his knowledge. First, there is not the slightest evidence of planting in this case. Second, although the quantity of drug is small, it is common sense that that packet still worth an amount of money. In other words, it is not worthless. If a third party owned this packet of drug, he might be a friend or a stranger to the defendant. If he were a friend of the defendant and intended to give it to the defendant for free or as a gift, there was no need for him/her to put it inside the defendant’s wallet without the defendant’s knowledge. If this third party did not know the defendant, there is no reason why he should give this packet to the defendant. Even if that third party parted possession of the packet for the purpose of avoiding detection such as licence check, this would only happen when there was a licence check. If there were a licence check, this third party did not need to put the packet inside someone’s wallet. He/she could simply discard it on the floor or any other part of the Bar. If he/she were minded to put the packet inside the wallet of someone else, such as the defendant, he/she would only take action at the interval between the police announced licence check and the time before the defendant got possession of his wallet.

21. According to the evidence of officer Yeung, police arrived at the Bar at 0040 hours and announced licence check. They also told customers to take a seat and have their ID cards ready for check. At 0044 hours, officer Yeung was already standing in front of the defendant’s table, ready for the check. In other words, if that third party were to put the packet of drug inside the defendant’s wallet, he/she had to do it quickly in less than 4 minutes’ time and carefully put it between 2 photos and at the same time not being noticed by others including the defendant when people were busy getting back to their tables with their belongings. There is no evidence indicating that someone was tampering with the defendant’s wallet during that 4-minute interval. I find the defence suggestion plainly impossible and incredible.

22. Although I accept the defence submission that the defendant only has an evidential burden to rebut the presumption under section 47 (1) and (2) of the Dangerous Drugs Ordinance, Cap. 134 and that the defendant and his witness have given evidence to discharge the burden, having considered the evidence and the circumstances mentioned above, I find the prosecution has proved beyond reasonable doubt that the defendant owned and possessed that packet of drug.  I find him guilty of the charge.”

Grounds of appeal

8.The appellant is represented by Mr Leon Tang in this appeal.

9.First, Mr Tang complained that there was insufficient evidence to prove that the appellant had possession of the packet of cocaine found in his wallet, namely there is no direct evidence (eg fingerprint) linking the appellant to the packet.  Furthermore, the magistrate had failed to evaluate the discrepancy between Officer Yeung’s notebook/witness statement and his evidence in court regarding how the packet was placed inside the appellant’s wallet.

10.Second, the magistrate erred in concluding that the packet of cocaine could not have been implanted by someone other than the appellant prior to the licence check.

11.Third, the magistrate wrongly rejected the appellant’s evidence and wrongly accepted Officer Yeung’s evidence.

My considerations

12.Macrae VP in HKSAR v Jassey Francis Ja & another [2018] HKCA 369 held :-

“ 42. …The absence of DNA and fingerprint evidence to show that a defendant has handled a vital exhibit is a neutral fact: see, for example, HKSAR v Law Wing Hong; HKSAR v Pham Thi Nga; HKSAR v Butt Ummar; HKSAR v Tsuchiya Koji; HKSAR v Dramane Mouhamed Saiti. The prosecution are not required to provide such evidence in a criminal case, and nor does the absence of such evidence in the normal course undermine a prosecution. The same may be said of CCTV evidence.”

13.Mr Kuan for the respondent has correctly pointed out that the lack of fingerprint evidence on the packet of cocaine is neither here nor there.  It does not strengthen the defence case or weaken the prosecution case.

14.Paragraph 2 of the Admitted Facts[7] reads “The Defendant was found sitting at table number 3 inside the premises with his wallet (Exhibit P2) being placed on the table in front of him.”  Mr Tang complained that when the magistrate found the appellant had all along had possession of the wallet[8], she erred in making a finding contrary to an admitted fact.  With due respect, Mr Tang is taking magistrate’s words out of context.

15.Paragraph 2 of the Admitted Facts refers to the specific moment when the appellant was found by the police at the bar.  No one disputes that at that moment, the appellant’s wallet was lying on the table. The magistrate was certainly aware it.  Paragraphs 16 to 18 of the Statement of Findings must be read together.  The magistrate was dealing with the defence evidence in those paragraphs.

16.At paragraph 16(1), the magistrate wrote “It is all along the defendant and Ms Luk’s version that the defendant put his wallet on the table without guarding it…”  Then at paragraph 18, the magistrate said “Based on the evidence I accepted [sic], I find the defendant had not put the wallet on the table as alleged.  He had all along had possession of the wallet.” (emphasis added)  Clearly, the magistrate was referring to the appellant’s assertion that he had left his wallet on the table without guarding it.  She rejected this assertion and found that he had his wallet with him all along (until the time of licence check).  I have not a single doubt that this was what the magistrate meant.  I disagree with Mr Tang that the magistrate had made a finding contrary to an admitted fact.

17.The magistrate has given reasons as to why she disbelieved the appellant that he would leave his wallet on the table without guarding it[9]. She considered that a reasonable person would not casually leave his/her valuables on a table in a crowded bar full of strangers.  She also found it unreasonable that the appellant would feel perfectly comfortable to leave his wallet which contained money, credit cards and ID card as well as his mobile phone, which contained a massive amount of personal data, on the table without guarding them. I completely agree with the magistrate.

18.It is trite law that a “reasonable doubt” does not mean a fanciful doubt.  The magistrate is correct to reject the suggestion of a possibility that someone had placed the packet of cocaine in the appellant’s wallet without his knowledge.  Such a suggestion begs a number of rhetorical questions:  Why would someone do that (bearing in mind that cocaine costs money, albeit only 0.06 gramme in the present case)?  What benefit would that person gain by doing so?  Who would secretly place a packet of cocaine in the appellant’s wallet as gift or to frame up the appellant?  The answers to these questions all point to one and only one conclusion―inherent improbabilities. There is not the slightest hint of evidence to support such an absurd suggestion.  The magistrate has properly dealt with this inherently improbable suggestion at paragraphs 22 to 21 of the Statement of Findings.

19.The fact that Officer Yeung did not mention in his notebook or witness statement that the packet of drug was placed inside the appellant’s wallet between 2 photos simply has no significance in the present case.  The magistrate was aware of the matter and has accepted the officer’s explanation. The magistrate has correctly dealt with this issue and I need not go any further.

20.Finally, the magistrate did not draw any adverse inference against the appellant for remaining silent when questioned by Officer Yeung at the scene.  If fact, she has specifically said so at paragraph 15 of the Statement of Findings.  At paragraph 13 of the Statement of Findings, the magistrate was doing no more than explaining why she believed Officer Yeung’s version in relation to the appellant’s initial response, if any, to his question “to whom the packet of drug belonged”.

21.I have reminded myself of the principles on “re-hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in themagistrate’s reasoning or findings.  She has thoroughly evaluated the evidence of both sides. Her analysis is sound and with proper evidential basis.  I see no reason to disturb her findings.

22.I dismiss the appeal against conviction.

APPEAL AGAINST SENTENCE

23.In sentencing the appellant, the magistrate gave her reasons as follows[10] :-

“ 7. The defendant is aged 32 and single. He had a stable job as a project manager of a real estate company earning $33,000 per month. He also made regular donation to a charity. A urine test was done on 14 September 2017, about 2 months after the offence date, showing negative result for dangerous drugs.

8. Before sentencing, a Drug Addiction Treatment Centre suitability report and a probation officer’s report were called for.

9. The reports show that the defendant is not drug dependant and counselling is not suitable as the defendant maintains his innocence.

10. Defence counsel submitted that the defendant had learnt a lesson and the chance of re-offending would be low. He urged the court to impose a lenient sentence by imposing a fine.

11. Possession of dangerous drug is a serious offence. Although the quantity of drug involved is small, one must not lose sight of the nature of the drug. It is cocaine, a hard drug. For the purpose of sentencing, the sentence imposed is the same as if the drug is heroin. Further, the drug was found in the defendant’s wallet when he was having celebration with his friends in a bar. Bars in Hong Kong are one of those places where people may be found abusing dangerous drugs as well as where dangerous drugs may be supplied to others, be it for commercial gain or social consumption.

12. Therefore, I did not consider it appropriate to deal with this case by way of a fine.

13. According to the sentencing guideline, the starting point for simple possession is in the range of 12 to 18 months’ imprisonment. However, this guideline is not a strait jacket. For cases involving very small quantity of drug, it is within the court’s discretion to impose an appropriate starting point.

14. Taking into consideration the circumstances of this case, in particular the small quantity of the drug and the nature of the drug, and the mitigation, I considered the appropriate starting point to be 2 months’ imprisonment.  As the quantity of drug involved is small, I did not enhance the sentence for the latent risk.  In view of the defendant’s clear record and his regular donations to charity, I exercised my discretion to reduce the sentence by 1 month.  Other than that, I did not see other mitigating factors justifying further reduction.  The defendant was therefore sentenced to 1 month’s imprisonment.”

Grounds of appeal

24.Mr Tang submitted that an immediate custodial sentence for such a small quantity of cocaine is wrong in principle and manifestly excessive for the appellant, who has a clear record and a fine personal background.  Mr Tang invited me to consider other options including a suspended sentence.

My considerations

25.Offences related dangerous drugs are no doubt serious; however, each case does depend on its own facts when it comes to sentencing. The possibilities of a non-immediate custodial sentence do exist, especially for a fresh offender and when the quantity of narcotic involved is very small. For simple possession of 0.06 gramme of a powder containing cocaine, the court has a wider discretion.

26.The appellant has a clear record and is in gainful employment.  There is no evidence to suggest that he is a hardcore criminal or drug user.  Having been through the ordeal of a trial and an appeal, as well as having been remanded in jail custody for 14 days, I believe he has learned a bitter lesson.

27.I am prepared to give the appellant his one and last chance by imposing a suspended sentence.  I believe a suspended sentence would serve as an effective reminder for him to stay out of trouble, especially drugs, for a period time.

28.Based on the reasons stated above, I allow the appeal.  I sentence the appellant to 1 month’s imprisonment, suspended for 18 months.

Mr Franco Kuan, SPP, of the Department of Justice, for the respondent

Mr Leon Tang, instructed by Ellen Au & Co, for the appellant