HKSAR v. Tse Sui Hing

HCMA 474/2021

[2022] HKCFI 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 474 OF 2021

(ON APPEAL FROM ESCC 984 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  20 January 2022

Date of Judgment:  20 January 2022

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JUDGMENT

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Introduction

1.The appellant was found guilty after trial by Edward Wong, Magistrate on 26 August 2021, of one charge of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 17 months’ imprisonment. By his notice of appeal, dated 3 September 2021, the appellant appeals against that conviction.

Brief Facts

2.The prosecution case relied entirely upon the Admitted Facts P64. Those facts proved that on 1 June 2017, the defendant was in the driver’s seat of a motor vehicle registration number TW543 when ordered to stop. A search of the vehicle was carried out and 57 items were recovered from the boot of the car including several plastic bags and beakers with traces of cocaine[1]. A bag and cash of HK$28,000 was recovered from the windshield and a mobile phone was recovered from the defendant.

Statement of Findings

3.As there were no prosecution witnesses, the Magistrate outlined the evidence from the Admitted Facts upon which the prosecution relied. He went on to consider the evidence of the defendant who explained that he was a construction worker and that the car belonged to him. However, it was also used by his girlfriend. He had questioned her whilst on police bail but had received no answer from her as to the items recovered by the police and they had since broken up. The Magistrate noted that the defendant had never been in his car when the girlfriend had driven it and that he suggested she had last driven it about a month prior to the incident whilst he had last looked into his boot some two weeks before the incident.

4.The Magistrate rejected the exculpatory elements of the defendant’s evidence as he found him evasive in respect of the third party use of his car and unusual that he had let his girlfriend use his car but had never seen her drive it. He also noted the discrepancy as to timing in respect of when he said she had last used the car. By reason of his whole Statement of Findings (“SoF”), it is clear the Magistrate inferred from the ownership of the vehicle, the lack of recent use by the girlfriend and the presence of the defendant in the vehicle at the material time, that the defendant was in knowing possession of the articles with traces of cocaine.

5.He then went on to consider whether the drugs and paraphernalia in question in the circumstances in which they were recovered amounted to trafficking. He relied upon HKSAR v Akhemetzyanova [2012] 5 HKLRD 708 in which the Court of Appeal stated:

“27. The present case concerns acts of trafficking that would be within the ambit of the phrase ‘dealing in or with’. Ever since Attorney General v Lau Chi-sing [1987] HKLR 703 it has been accepted that the phase ‘dealing in or with’ covers a broad range of activity beyond ‘importing, exporting, procuring or supplying’ but that the activity is still limited by excluding from the reach of the phrase any actions by a consumer of drugs that relate to his consumption of them, be it by storing them, handling them or even discarding them. What transforms the transporting or conveying of the drugs or storage of them into trafficking in them is the purpose for which the transportation or storage takes place.

28. The most detailed discussion of the phrase “dealing with” is the Court of Appeal’s decision in HKSAR v Chan Hong [1995 - 2000] HKCLRT 147. At pages 151 - 152, [10] the court said:

‘Secondly, the prosecution must prove beyond reasonable doubt that the defendant trafficked in the drugs. The Dangerous Drugs Ordinance (Cap.134) gives a very broad definition of the term “trafficking”, and the two types of trafficking relevant to the present case are dealing with the drugs and possessing the drugs for the purpose of trafficking. The term “dealing with” is not defined in the Ordinance. Dealing with a drug comprises the act of dealing with it (actus reus) and the intention to deal with it (mens rea). Not all forms of possessing a drug constitute dealing with the drug. Whether a particular form of possessing a drug constitutes dealing with the drug would depend on the act involved and the purpose or objective of the act. Merely carrying a drug while walking along the street is not sufficient to constitute dealing with the drug and hence trafficking in it. Nor can such an act in itself given rise to an inference of dealing with or trafficking in the drug. The surrounding circumstances and other factors have to be considered, such as the defendant’s intention, purpose or objective of carrying the drug, as well as the time and place and the quantity of drugs involved. Generally speaking, to constitute drug trafficking, the act of dealing with the drug must suggest that a third party is involved, for example, carrying or delivering the drug for another person. Another type of trafficking is possessing a drug for the purpose of trafficking. In this connection, the prosecution does not have to prove any act of dealing with the drug or other acts. As long as the defendant is proved to have possessed the drug and have had the intention and ability to use all or part of drug for trafficking purposes, then he is guilty of drug trafficking.” [Italics added]’”

6.Having considered the authorities above and the evidence before him, he found the defendant to be dealing in the cocaine recovered.

Grounds of Appeal

7.The Perfected Grounds of Appeal against conviction amounted in summary to:

Ground 1  There was a material irregularity in that the Magistrate descended into the arena when he asked questions of DW1.

Ground 2  The Magistrate wrongly rejected the evidence DW1.

Ground 3  There was no DNA of the defendant recovered from the items in the boot.

Ground 4  The Magistrate erred in concluding that the appellant had knowledge of possession of DD considering that there were only traces of DD on the items in the boot.

Analysis

8.As to Ground 1, I see nothing improper in the manner in which the Magistrate intervened. That intervention would have been less extensive if the witness had simply answered the questions directly. It came about in answer to subjects introduced by the witness himself i.e.that his girlfriend drove his car as well as he and that he did not know if she trafficked in drugs. The magistrate was simply clarifying that evidence. This was clearly an attempt to shift the blame elsewhere in order to raise a doubt and the Magistrate simply explored it, no doubt because defence counsel had not laid the best foundation for this defence and he wanted to ensure he had the relevant facts. This may just as well have been to the benefit of the defendant as to his detriment. A proper assessment of the totality of the evidence of DW1 shows, as Ms Parwani has submitted, that the Magistrate attempted not to interrupt the flow of defence counsel’s questions[2], ensure the defence were given ample opportunity to voice their concerns[3] and interrupted to clarify evidence.[4]

9.As to Ground 2, the Magistrate was in the best possible position to assess the credibility of a witness. He was an experienced Magistrate who had percipient experience of the defendant. This court will be slow to interfere with that view unless it can be shown that the findings of the Magistrate are unreasonable or illogical or inherently improbable or that the Magistrate has misquoted, omitted or failed to consider any significant aspect of the evidence.[5] He provided an explanation for his rejection of that evidence at paragraph 26 of his SoF and I can see nothing wrong with that reasoning.

10.As to Ground 3, on the facts of this case, the lack of DNA from the defendant is not determinative of guilt or innocence and was noted by the Magistrate. It was an Admitted Fact. I note there was no admitted fact as to the sex of the DNA which was found, which I find unusual because it would have been in the report. It may have been of some weight had the DNA been identifiable to the girlfriend or to a female but that was not adduced before the court below. As it happens, the DNA report was available to the court on the rehearing and an application was made to adduce it. It shows that the sex of the DNA recovered was male. I can only presume therefore that there was a conscious decision by defence counsel not to include that fact in the Admitted Facts. It certainly undermines the suggestion before me that the bags were the property of the girlfriend and placed in the car by her. The items were found within three bags inside the boot of the Mercedes. The significance of the lack of DNA or fingerprints may have been different if the items were found individually within the boot, when one would have expected some fingerprint or DNA evidence connecting them to the defendant. But that was not the case.

11.As to Ground 4, this issue was not raised before the Magistrate as part of the defence run at trial. That was that the appellant had no knowledge of the items in the boot. There was no alternative argument before the Court that if he had known of the presence of the articles, he nevertheless did not know that they contained traces of cocaine. This argument is without merit.

12.Mr Wong, on behalf of the appellant submitted in support of his grounds of appeal that the Magistrate did not give due regard to the fact that the girlfriend also had access to the car key. He doggedly pursued this argument even in the fact of the acceptance in evidence by the appellant that she had last driven the vehicle a month before the incident and that he had noted an empty boot two weeks before the incident. At no stage had he suggested she had used his car in the intervening period nor did he suggest she had put times into the car either at the material time or at any other time. There was no evidence before the court to suggest that the Magistrate should consider that the drugs belonged to the girlfriend. Indeed, the Magistrate actually asked the appellant if he thought she was a drug trafficker and he had replied that he did not know. It is somewhat disingenuous to suggest on appeal that the Magistrate had not properly consider the possibility of the drugs belonging to the girlfriend when that had not been put in trial.

Conclusion

13.I can see no basis whatsoever to criticise the findings of the learned Magistrate, who directed himself according to all relevant legal principles and applied the rules of evidence and procedure without fault. It is not his function to consider matters not properly raised before him. He is not psychic. If the defence case was that despite not driving the car for a month, the girlfriend was the person who placed the drugs within the boot of the car, then the defendant should have made this plain in his evidence. He did not do so. It is not sufficient to simply say “someone else had access to the car”. The Magistrate was well aware of that fact but for the reasons given, he nevertheless found the appellant guilty of trafficking. I find nothing about his findings on the credibility of the witness or the evidence to suggest an irregularity or that the conviction was unsafe or unjust.

14.This appeal against conviction is dismissed with costs to the respondent.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

Mr Wong Hay Yiu, instructed by the Director of Legal Aid, for the appellant