HKSAR v. Wong Wai Lun

[English Translation - 英譯本]

CACC 91/2017

[2018] HKCA 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 91 OF 2017

(ON APPEAL FROM HCCC NO. 422 OF 2016)

___________________

___________________

Before:  Hon Yeung Acting CJHC, Hon Poon and Hon D Pang JJA in Court

Dates of Hearing:  10 April and 26 September 2018

Date of Judgment:  6 September 2018

Date of Reasons for Judgment: 8 October 2018

REASONS FOR JUDGMENT

Hon D Pang JA (giving the Reasons for Judgment of the Court):

1.The applicant was convicted after trial of one count of “trafficking in a dangerous drug” involving 33.5 grammes of a crystalline solid containing 31.31 grammes of the dangerous drug “ice”. He was sentenced to 8 years and 5 months’ imprisonment by the trial judge (Joseph Yau J)[1]. The applicant sought leave to appeal against conviction.

The prosecution evidence

2.The prosecution only called three witnesses, namely Police Constable 12406 Chow Ka Wing (transliteration) (“PW1”), Woman Senior Inspector Cheung Ka Wai, Gloria (“PW2”) and Psychiatrist Mak Kai Lok, Gregory (“PW3”).

3.In respect of the course of arrest of the applicant, PW1 gave evidence as follows[2]:

“PW1 ... at 3:58 a.m. on 3 March 2016, (PW1) who was in plain clothes, together with several colleagues in uniform, patrolled Soy Street in Mong Kok. At that time, they were on the stretch of Soy Street between Portland Street and Shanghai Street. PW1 saw … the accused. At that time, the accused was talking on his mobile phone. He suddenly turned round and looked towards Shanghai Street. Then, all of a sudden, he went inside the building at 15 Soy Street. Feeling suspicious, PW1 followed him inside. In the lobby of the building, he produced his warrant card and revealed his police identity to the accused who was then still talking on his phone. And other police officers also went into the lobby of the building for reinforcement. As it was too cramped in the lobby, PW1 took the accused to the outside of the building where the accused was body searched by PC7901.

PW1 witnessed the body search. He saw PC7901 found two transparent resealable plastic bags in the right front pocket of the trousers the accused was wearing. … which were the two plastic bags containing the “ice” in question …

PW1 arrested and cautioned the accused for the offence of (simple) possession (i.e. possession of a dangerous drug). … Under caution, the accused said, “Those are dangerous drugs “ice”, which are for my own consumption.” After that, the accused was handcuffed by PW1 who eventually, together with other police officers, took the accused to the police station.

After taking the accused to the duty officer of the police station for reporting and handling the relevant exhibits, PW1 conducted a body search of the accused and found on his person $1,500-odd in cash and two mobile phones. …”

4.PW2 was attached to the Narcotics Bureau of the Police Force. Based on the information and her experience accumulated on the job, she gave the court an estimate of the street value of the dangerous drug in question at the time of the offence, i.e. “the lowest price was $278 per gramme and the highest price was $375 (per gramme), and thus the average price was $313 per gramme.”[3]. She added that only when a client made a purchase of at least 200 to 300 grammes of the dangerous drug “ice” would the price be “lower”[4]. She said that the “chance” of purchasing approximately 33 grammes of the dangerous drug “ice” for $2,400 (i.e. the amount the applicant claimed that he had paid[5]) was “really slim”[6].

5.PW3 gave evidence on the average consumption rate of the dangerous drug “ice” only. In gist, PW3 said that studies in both Mainland China and Taiwan showed that the daily consumption rate of “ice” “ranged from 0.1 to 0.6 gramme. Thus, the median (consumption rate) was 0.3 gramme”[7]. Therefore, “in accordance with the calculation based on this median, the 33.53 grammes of “ice” in question would last for 112 days”[8]. PW3 further stressed that “by taking 1 gramme of “ice”, (the abuser) would not be able to go to work”[9], and that in the event of finishing off 30 grammes of ice in 30 days with a daily dose of 1 gramme (i.e. the applicant’s consumption rate as he claimed[10]), “the abuser would have been admitted to hospital on the third day”[11].

The defence case

6.The applicant did not give evidence or call any witnesses. He relied on the account he had put forward since the time of his arrest, namely the dangerous drug was purely for his own consumption. And for this reason, he did not object to the prosecution producing in evidence his subsequent cautioned video-recorded interview, the material contents of which are as follows: he had been consuming the dangerous drug “ice” for almost 10 years, with a daily consumption of 1 gramme or slightly over 1 gramme; he consumed (the substance) mostly in a toilet or at a friend’s home; the dangerous drug “ice” in question was purchased from a male “Ah Shing” (transliteration) who frequented Sai Yee Street Garden in Mong Kok; the time of the purchase was before the applicant’s arrest; the aggregate weight of the 2 packets of dangerous drug “ice” in question was 1 ounce plus 7 grammes; he purchased 2 packets at one go because the price would be lower; the actual amounts he had paid were $1,900 (for the larger packet) and $500 (for the smaller packet); this batch of dangerous drug ice would last him approximately a month; the applicant originally lived with his family in Tuen Mun, however, at the material time, he “slept from place to place”, including sauna bathhouses where he would visit for bathing; at the time of the arrest, he was at 15 Soy Street in Mong Kok simply because he wanted to go to a sauna bathhouse at the above location for bathing; the applicant was a “casual worker” by occupation, earning a daily wage of about $800, or $15,000 to $16,000 on a monthly basis.  

The present appeal

7.Mr Cheung, solicitor advocate representing the applicant only at the appeal stage, advanced three grounds of appeal. Upon “re-amendment”, ground (1) of the grounds of appeal complained that: 

“In respect of expert evidence on the maximum daily dosage of the dangerous drug “ice”, it is found that there is additional expert evidence and other evidence which may negate or undermine the expert evidence relied upon by the prosecution in the present case, rendering the guilty verdict unsafe.”

8.The additional evidence that Mr Cheung referred to[12] was primarily the ruling of the Court of First Instance rejecting the expert evidence on the same issue given by PW3 in HKSAR v McCall Howard Kenneth & Lam Aroon HCCC 446/2016 (27 October 2017), as well as the expert reports on the maximum daily dosage of the dangerous drug ice by four other psychiatrists or toxicologists[13]. The said batch of expert reports prepared between March 2013 and March 2018 revealed that chronic “ice”-users in Hong Kong, in spite of the fact that they represented a relatively small proportion of the (total) number, could consume up to 1 gramme per day. Two of the reports even indicated (a daily consumption of) up to 2 grammes.

9.Given the extremely significant inconsistency between these conclusions and PW3’s evidence, the respondent took the position that they do not oppose leave being granted to the applicant and the appeal being allowed. As the maximum daily dosage of the dangerous drug “ice” is a piece of important circumstantial evidence which may serve the purpose of drawing inferences as to whether the dangerous drug in question was for self-consumption, this Court is of the view that the position of the respondent is fair and correct.

Whether there should be a retrial

10.Mr Cheung opposed the respondent’s application for a retrial.  However, having heard the submissions from both parties, this Court considered that:

(1)  Regardless of the actual quantity of the dangerous drug in question, trafficking in a dangerous drug is in itself an extremely serious offence, which should not be let pass easily.

(2)  The prosecution evidence in the present case is not too flimsy. There is the possibility that the applicant may be convicted of trafficking in a dangerous drug at retrial.

(3)  The possibility that the applicant may eventually be acquitted of trafficking in a dangerous drug and the high risk that the term of imprisonment served would be longer than that for simple possession could be addressed by granting bail pending retrial.

Judgment

11.We grant the applicant leave to appeal against his conviction, allow the appeal and (order) the case to be remitted to the Court of First Instance for retrial. The applicant may be admitted to bail pending retrial on the conditions agreed upon during the hearing.

Eric Cheung, Solicitor Advocate, and Lydia Leung, Barrister-at-law, instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Applicant

Franco Kuan, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.