HKSAR v. Choi Lai Chu, Connie

CACC 89 /2016

[2019] HKCA 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 89 OF 2016

(ON APPEAL FROM HCCC NO 469 OF 2015)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The applicant was convicted on 18 March 2016 following a trial in the High Court before Deputy Judge Line and a jury on a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. On the same day, she was sentenced to 14½ years’ imprisonment.

2.The applicant sought leave to appeal against both conviction and sentence.  On 24 May 2019, having heard from the applicant and the respondent, we refused leave to appeal in respect of both conviction and sentence and dismissed the appeals, indicating that we would hand down the reasons for our decision in due course.  These are our reasons.

The prosecution case

3.On 15 May 2015 at about 6:30 pm, police officers entered Room 903, Hoi Yu House, Hoi Fu Court, Tai Kok Tsui in Mongkok (“the premises”) with a search warrant.  The applicant was the tenant and present inside the premises at the time. 

4.Upon entry, police officers found on a table a $20 note on which were traces of heroin hydrochloride, one plastic bag containing 1.26 grammes of a mixture containing 0.85 gramme of heroin hydrochloride and 3 plastic bags containing 5.01 of a crystalline solid containing 4.93 grammes of methamphetamine hydrochloride (commonly known as “ICE”), along with other drug paraphernalia, including an electronic scale and numerous empty transparent re-sealable plastic bags.  On the floor, there was a red bag with another 246.3 grammes of a crystalline solid inside containing 243.2 grammes of ICE[1].

5.The finding of the dangerous drugs was agreed at trial by way of admitted facts, under section 65C of the Criminal Procedure Ordinance, Cap 221[2]. In terms of the quantity of narcotic present, there were in total 0.85 gramme of heroin and 248.31 grammes of ICE found in the premises.  The street value of the heroin was $933; and of the ICE, $99,016, making a total of $99,949[3]. The traces of heroin on the $20 note were excluded from the charge.  No identifiable fingerprints were found on the packaging of the drugs[4].

6.The applicant was arrested soon after the police had entered the premises.  Under caution, she made admissions to trafficking in dangerous drugs.  Subsequently, inside Mongkok Police Station, two police officers, PW1 and PW2, conducted a formal video-recorded interview (“VRI”)[5] with the applicant, in which she repeated and elaborated upon her earlier admissions.

7.Immediately before the entry of the police into the premises, a male named “Chu” was observed outside the flat pressing the doorbell.  After the police entered the premises, they found another male named “Wong” inside.  There were also two dogs inside the premises.

8.The prosecution called three witnesses.  PW1 was a woman police constable who had arrested the applicant.  She gave evidence of the applicant’s answer under caution to trafficking in a dangerous drug, to the effect that “A male who was called ‘Wu Lei’ brought it up here.  He asked me to bring it to the clients after receiving phone calls”.  PW1 faithfully wrote this down in her police notebook at 6:36 pm and the applicant signed against it[6]. Less than an hour later, PW1 made a further post-record in her notebook of what had occurred inside the premises, against which the applicant signed in confirmation and wrote a declaration signifying that the contents were true and that she had made them of her own free will.

9.The police party left the premises with the applicant at 10:30 pm for Mongkok Police Station.  Police officers had intended to interview the applicant at the Police Station, but she asked for a rest, which request was granted[7]. In the result, she was not interviewed until the following day at 5:18 pm.

10.In her subsequent VRI, the applicant said that a man called “Wu Lei” had “coerced” her into distributing drugs for him because she was indebted to him, having lost at mah-jong; he had further threatened to hurt her daughter[8]. She said that the drugs on the table belonged to her[9].  “Wong” had come to the premises at about 1 pm on 15 May 2015, because he wanted some heroin from her[10]. She thought he had consumed heroin in the premises whilst she was asleep[11]. The red bag on the floor (which contained 243.2 grammes of ICE narcotic) was brought to the flat between 5 and 6 pm by another man, shortly after “Wu Lei” had informed her in advance of the delivery by telephone.  She knew that the bag contained ICE[12].

11.In cross-examination, PW1 disagreed that the sergeant in charge of the police party had induced the applicant to confess by threatening to arrest her daughter.  In fact, her daughter had come to the premises at her request and taken the two dogs away.  PW1 denied that the applicant was told to say that she had become indebted to the supplier through losses at gambling, and that he had then exploited and coerced her into trafficking in dangerous drugs; and that by so confessing she would obtain bail and a lenient sentence.  PW1 further denied that the officers knew the applicant was ill and was suffering from drug withdrawal symptoms.  The applicant was not in fact granted bail after the taking of the VRI[13].

12.PW2 and PW3, who were the exhibits officer and the sergeant respectively, both denied that any threats and inducements were made to the applicant.  In particular, PW2 denied that he had given the applicant a cigarette dipped in heroin from the $20 note[14].

The defence case

13.The applicant gave evidence, but did not call any witness.  She said “Wong”, who was a friend of her boyfriend, had arrived at the premises at about 1 pm that day in order to bring her medicine and food, since she had not been feeling well[15]. She took the medicine and went to sleep and did not know what he did thereafter inside the premises[16]. Later, she heard the doorbell ring and went to open the door and the metal gate, as a result of which police officers entered the premises. 

14.The applicant claimed that the drugs and associated paraphernalia in the premises did not belong to her, nor did she know why they were there[17]. PW3 had said to her that if the drugs did not belong to her, then they must belong to her daughter, whose name was also on the tenancy agreement; and that if she did not admit to possession of the drugs, he would arrest her daughter[18]. He thereupon coached her to say that she was in debt, that she had an addiction problem, and that someone had come to put drugs in the premises for her to distribute.  He then asked PW1 to make a record accordingly in her notebook[19].

15.The applicant complained that she was suffering from drug withdrawal symptoms.  Accordingly, PW2 gave her a cigarette dipped in the traces of heroin that remained on the $20 note.  In the presence of the police, she smoked the cigarette and thereafter signed the notebook.  This was after her daughter had been to the flat and collected the two dogs.  She denied making the answer recorded in the notebook at the time of arrest[20].

16.When she was taken to Mongkok Police Station, the applicant told the duty officer that she was very ill and that she would like to see a doctor.  However, PW3 told her not to see the doctor but to wait until she was bailed out after the taking of her VRI.  Despite persistently asking for a doctor, she was only taken to the hospital at 2.00 am on 16 May 2015, where the doctor administered methadone to her[21]. PW3 instructed her to repeat the story about being in debt and being used by someone in her VRI, otherwise a warrant would be issued to arrest her daughter.  Moreover, the sooner the VRI was completed, the sooner she would be bailed[22].

17.When she was asked in examination-in-chief[23] if it was “Wong” who had put the drugs and other items on the table in the premises, she said she thought so; and that it was also probably “Wong” who had brought the red bag to the premises.

18.In view of the fact that she had made obvious imputations against the character of the police witnesses, application was made by the prosecution, and subsequently granted, for her to be cross-examined on her previous criminal record.  The record, which she accepted, included convictions in the magistracy for assault occasioning actual bodily harm and common assault, for which she had been placed on probation in 2000; shoplifting, for which she had been sentenced in the magistracy to 7 days’ imprisonment in March 2010; and trafficking in dangerous drugs, for which she had been sentenced in the District Court to 32 months’ imprisonment, together with 4 months for absconding, making a total of 36 months’ (or 3 years’) imprisonment in July 2010[24].

19.Upon further cross-examination, the applicant denied financing her own drug addiction by trafficking.  She claimed that PW3 had tricked her into signing the admissions to trafficking in dangerous drugs. She said she had complained about this after seeing her lawyer on her first appearance in the magistrate’s court on 19 May 2015.  She had no idea why “Chu” came to the premises and denied that he was her drug customer.

Appeal against conviction

20.Four grounds of appeal have been put before us with an accompanying written argument, which was received by the court eight days before the hearing of the appeal.  We are grateful to Mr Andy Lo, for the respondent, for dealing so comprehensively with the applicant’s grounds of appeal and written argument at such short notice. 

21.The applicant’s grounds of appeal are as follows.  First, it is complained that the judge was wrong to have allowed prosecuting counsel to cross-examine the applicant on her criminal record and that in doing so, he failed to exercise the discretion underlying the power. This is said to have been prejudicial to her, particularly in the light of her previous conviction for drug trafficking (Ground 1).

22.Secondly, complaint is made that the judge launched into an unwarranted digression in his summing-up to explain why there may have been no fingerprints on the plastic bag, without any evidence to support his comments (Ground 2).

23.Thirdly, it is alleged that the judge indulged in ‘sarcasm’ to undermine the applicant’s account, when he invited the jury to look at the VRI itself in order to judge whether the applicant’s demeanour looked as though she might have been threatened, induced and coached so as to “pull off a considerable piece of acting without much direction and no script, without making any significant mistake” (Ground 3).

24.Fourthly, it is said that the judge should have given a direction on duress (Ground 4).

Discussion

25.We will deal with these grounds of appeal in reverse order.  In respect of Ground 4, this was not a case which called for a direction on duress.  Duress was not put forward as the applicant’s defence in evidence.  On the contrary, she testified that she had no idea how the drugs had arrived in the premises, or to whom they belonged: but whoever they belonged to, they were not hers.  The claim that a man called “Wu Lei” had brought them to the premises and coerced her into trafficking in dangerous drugs was made in her VRI, which she disclaimed as an involuntary confession brought about by threats and inducements.  Not only was duress not her defence at trial, her bare assertion in the VRI did not come anywhere near providing such a defence in law.  The judge was right not to so direct the jury and we agree with Mr Lo that the complaint is wholly misconceived.

26.Ground 3, in which it is complained that the judge indulged in sarcasm with the effect of undermining her account, is simply not made out.  The applicant’s case was that she had been threatened, induced and coached, as well as given some heroin, before signing the notebook and giving the answers recorded in the VRI.  The suggestion to the jury that they should look at the VRI itself to see whether she was putting on an act as instructed by the police, with all the attendant dangers that she might suddenly blurt out something about the officers’ threat to arrest her daughter or their inducement to grant her bail, or whether it was an unscripted account, was an obvious way for the jury to approach the issue. 

27.In any event, immediately after inviting the jury to consider these matters from an examination of the VRI, he made clear that:

“It is up to you what to make of these matters of fact. The mere fact that I draw them to your attention does not mean they are good or bad points for or against one side or the other.[25]”

We can see no substance to this ground.

28.In respect of Ground 2, the judge having correctly reminded the jury of the precise terms of the admitted fact, namely, that “no identifiable fingerprints were found” on the packaging of the dangerous drugs, went on to say:

“You will appreciate that different surfaces have different capabilities for holding a fingerprint. You will know that yourself, a hard surface like glass is obviously a good surface for doing so. You would have seen your own fingerprints on a glass. You may think that a soft, movable surface like a plastic bag would be the direct opposite. You have probably never seen your own fingerprints on a crinkly plastic bag. The fact that there is no fingerprint is something that you can take into account but someone’s hand must have put the drugs in the bag, and the drugs on the table.[26]”

29.In our judgment, the judge was doing no more than stating a common sense proposition which would be well within the experience of a juror or anyone else.  The fact remained that there was no identifiable fingerprint found.  That fact was neither here nor there in the context of the defence advanced.  There is no substance to this ground of appeal.

30.Turning then to Ground 1, we were at first concerned by the fact that the jury were informed in cross-examination that the applicant had a previous conviction for the very offence for which she was on trial before them.  Accordingly, we conducted an examination of the court recording of prosecuting counsel’s application to cross-examine the applicant on her criminal record, defence counsel’s response to the application and the judge’s ruling, including any reasons he gave for exercising his discretion to allow such questions to be asked.

31.It immediately became clear that prior to cross-examination commencing, prosecuting counsel made an appropriately timely application to the judge in the absence of the jury to cross‑examine the applicant on her previous criminal record.  The basis of the application was that the applicant had lost her shield or protection against such cross‑examination by making allegations against the police that they had threatened, induced and coached her to give answers in the VRI.  Moreover, they had allowed her to consume heroin in their presence so that she would effectively be more pliable in carrying out their instructions to sign incriminating documents.

32.The judge then asked defence counsel to state her position on the prosecution’s application.  Defence counsel told the judge that she had explained the risks flowing from the defence case before the applicant entered the witness box.  The applicant had understood those risks but specifically instructed her counsel to proceed.  Accordingly, defence counsel felt that she was unable to resist the application.

33.Although the judge indicated that he probably would accede to the prosecution’s application, he said that he wanted to think about it overnight.  Accordingly, the case was adjourned until the following morning, at the commencement of which he gave a short ruling with reasons granting the application.  

34.In his ruling, the judge made it very clear not only that he was fully aware of his discretion to permit the prosecution to cross-examine the applicant upon her previous convictions, thus revealing her criminal record to the jury, but also that he had anxiously considered the consequences for the applicant of exercising that discretion adversely to her. Nevertheless, he was of the view that the applicant’s defence had gone beyond mere emphatic denial.  It involved allegations of threats and inducements against prosecution witnesses and, in particular, “the giving the defendant heroin whilst she was in police custody, in order to advance their scheme of having her sign false confessions”.  He considered that it was important for the jury to know something of the character of the person making these allegations.  Whilst he recognised there was a danger that the jury might look upon the previous conviction for trafficking as evidence of propensity, he was satisfied that he could cure that risk with a strong direction to the jury as to how they should and should not use the evidence.

35.In due course, having allowed the prosecution to cross‑examine the applicant on her criminal record, that is exactly what the judge did.  He gave the jury the standard specimen direction in such circumstances and emphasised that “her convictions are not relevant at all to the likelihood of her having committed the offence.  They are relevant only as to whether you can believe her”[27].

36.We are satisfied that the judge plainly understood that he had a discretion and properly went about considering its exercise.  He was evidently concerned about the ramifications of exercising it in favour of the prosecution but reasoned, in our view correctly, that any risk or harm flowing from the revelation of the applicant’s criminal record would be adequately catered for by firm judicial direction, which he in due course gave.  In our judgment, this ground would be difficult enough to sustain in the light of defence counsel’s stated position: it becomes untenable against the careful way in which the judge exercised his undoubted discretion.

37.We should add that we played the court recording of the arguments and ruling on this matter to the applicant in open court, with a contemporaneous translation, so that she could properly appreciate the reasons for the mounting of the application at trial, her own counsel’s clearly stated position and the care with which the judge evidently approached his task in ruling as he did.

38.There was no merit in this or any of the applicant’s other grounds of appeal.  As a result, the application for leave to appeal against conviction was accordingly refused and the appeal dismissed.

Appeal against sentence

39.We turn now to the appeal against sentence. Although no perfected grounds or submissions were advanced before us in respect of sentence, it had been submitted in mitigation that the applicant had been suffering from, and receiving treatment for, depression for a number of years. She had stopped treatment in 2013, when she became addicted to heroin as the result of the death of her boyfriend.  She also told us that she is suffering from cancer.

Reasons for sentence

40.Ignoring the small amount of heroin (0.85 gramme) found, the judge used the 248 grammes of ICE narcotic as the basis for sentencing.  In this regard, the judge considered that in respect of 70 to 300 grammes of ICE narcotic, the sentence should range from 11 to 15 years’ imprisonment under the guidelines in HKSAR v Tam Yi Chun[28].  Accordingly, the judge adopted a starting point of 14 years’ imprisonment for the quantity of ICE concerned.

41.This starting point he increased by 6 months for the applicant’s previous conviction for trafficking in dangerous drugs, making a sentence of 14½ years’ imprisonment. 

42.We noted from the court file that the setting down of this appeal hearing had been adjourned at least twice because of the applicant’s apparent medical condition.  Correspondence with the Bar Free Legal Service Scheme further informed us that, whilst serving her sentence for this offence, the applicant had been diagnosed to be suffering from cancer, for which she was receiving treatment.

Discussion

43.We find nothing wrong with the judge’s starting point given the quantity of ICE concerned.  Arithmetically, it could have been slightly higher under the relevant guidelines in Tam Yi Chun and, in any event, the judge ignored the quantities of heroin altogether.  As for the enhancement of six months for her previous conviction for trafficking in 2010, no complaint can realistically be made about such an increase.

44.As for the applicant’s medical condition, we are confident that it will be properly monitored and adequately treated whilst she is in custody.  It is no basis for reducing an otherwise proper sentence for an offence of this gravity.

45.Finally, in her oral submissions before us, albeit in her reply, the applicant raised for the first time the issue that some of the drugs were for her own consumption.  This matter had never been raised by defence counsel before the trial judge and, we think, for good reason.  Given the quantity of ICE concerned, we have no doubt that even if the applicant had given evidence that some of the drugs concerned were for her own use, she could not have attained the threshold of establishing, in accordance with the authorities, that a significant quantity of them were for her own consumption so as to make any appreciable difference to her sentence.  In any event, we are bound to point out that she has always claimed that she has been addicted to heroin not ICE, although she now evidently claims otherwise.  There is nothing in this point, which, as we say, was advanced before us for the first time right at the end of the appeal.

46.The application for leave to appeal against sentence was likewise refused and the appeal dismissed.

Mr Andy Lo SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person