HKSAR v. Muhammad Ali Pahat

HCMA 342/2022

[2023] HKCFI 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 342 OF 2022

(ON APPEAL FROM KCCC 2885 OF 2021)

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Before:  Hon Johnny Chan J in Court

Date of Hearing:  16 November 2022

Date of Judgment:  30 January 2023

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J U D G M E N T

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Background

1.The appellant Muhammad Ali Pahat stood trial before Mr Dixon Co, Deputy Magistrate (“the Magistrate”) and was convicted of the following charges after a fully contested trial:

(a)  “Possession of a dangerous drug”, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (“Charge 1”);

(b)  “Possession of apparatus fit in intended for inhalation of dangerous drug”, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134 (“Charge 2”); and

(c)  “Possession of a Part I Poison”, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poison Ordinance, Cap 138 (“Charge 3”).

2.The appellant was sentenced to 10 months’ imprisonment for Charge 1 and 8 weeks’ imprisonment for each of Charges 2 and 3. The sentences were ordered to run concurrently.

3.The appellant appeals against both his conviction and sentence.

4.The appellant was legally represented at his trial. He appears in person on appeal.

Prosecution case

5.Charges 1 to 3 concerned what took place on 10^th August 2021 outside 91-93 Nathan Road, Tsim Sha Tsui, Kowloon.

6.Charge 1 concerned 1 plastic bag containing 0.26 gramme of a crystalline solid containing methamphetamine.

7.Charge 2 concerned 1 glass bottle with 2 openings, one of the openings was inserted with 1 glass tube with one end shaped as a bulb, containing 25 mililitres of a liquid containing methamphetamine fit and intended for the inhalation of a dangerous drug.

8.Charge 2 concerned the appellant’s possession of 1 foil pack containing 1 tablet containing sildenafil, which is a listed Part I poison, otherwise than in accordance with the provision of the Pharmacy and Poisons Ordinance.

The Case for the Prosecution and Defence at Trial

9.The Magistrate succinctly summarizes the parties’ respective case in paragraphs 6 to 8 of the Statement of Findings and Reasons for Sentence”:

“Parties’ Respective Case

6. The Prosecution’s case is that two police officers, namely PW1 and PW2, were on patrol. PW1 stopped the Defendant and asked for the Defendant’s identity card for a search. When the Defendant took out his wallet from the pocket of his shorts, a glass object and a green straw fell onto the ground and the glass object broke into 3 pieces.

7. Upon search, PW1 found on the Defendant in his pocket:

(a) A transparent resealable bag containing some crystallised solid (which would be Exhibit P1 and is the subject matter of Charge 1);

(b) a glass bottle, with a pink cover and with a straw, containing some liquid (which would form part of Exhibit P2 and is the subject matter of Charge 2); and

(c) 1 tablet of pill inside a foil pack (which would be Exhibit P3 and is the subject matter of Charge 3).

8. The Defendant’s case is that the above objects, namely the dangerous drug, the apparatus and the Part I poison, did not belong to him and were not found in his pocket. The police officers found them from another Southeast Asian male shortly before they stopped the Defendant, but that male managed to escape. PW2 actually noted that the Defendant was not the Southeast Asian male they earlier stopped. PW1 nonetheless arrested the Defendant for what was found on the Southeast Asian male.” (Pages 17-18 of the Appeal Bundle)

10.The Prosecution mainly relied on the evidence of PW1 and PW2. The Magistrate sets out in detail the evidence of PW1 and PW2 at paragraphs 13 to 31 of the Statement of Findings (Pages 20-22 of the Appeal Bundle).

11.The appellant elected to give evidence but called no witnesses. A detailed summary of the appellant’s evidence can be found at paragraphs 32 to 45 of the Statement of Findings (Pages 22-24 of the Appeal Bundle).

The Admitted Facts (Exhibit P6)

12.The following facts were admitted by the parties at the trial:

(a)  On 10^th August 2021, at the offence location, PW1 intercepted the appellant for enquiry and search at around 4:44 pm and arrested the appellant for the offences of possession of a dangerous drug and possession of apparatus fit in intended for inhalation of dangerous drug at 4:48 pm.

(b)  On the same day, at 5:08 pm, inside Police vehicle AM8693 parked outside the offence location, PW1 arrested the appellant for the offence of possession of a Part I poison.

(c)  On 11^th August 2021, at about 12:49 am, PW1 poured the liquid inside a glass bottle into a plastic bottle in the presence of the appellant.

(d)  On 11^th August 2021, in the report room of Tsim Sha Tsui Police Station, in the presence of the appellant and the Duty Officer, PW1 put the various exhibits into tamper proof bags and sealed them properly. Such exhibits included a plastic bag containing crystalline solid (Exhibit P1); a glass bottle, 1 plastic straw and 1 plastic bottle (Exhibit P2); and 1 foil pack containing 1 tablet (Exhibit P3).

(e)  On the same day, the appellant, the Duty Officer and PW1 signed on the above-mentioned tamper proof bags.

(f)  The chain of evidence was not disputed.

(g)  According to the Government Chemist’s Certificate:

(1)  exhibit 1 is a plastic bag containing 0.26 gramme of a crystalline solid containing methamphetamine hydrochloride (a salt of methamphetamine);

(2)  exhibit 2 contains a glass bottle with 2 openings, one of the openings was inserted with one glass tube with one end shaped as a bulb; 1 plastic straw; and 1 plastic bottle containing 25 mililitres of a liquid containing traces of methamphetamine;

(3)  the glass bottle and the plastic straw in Exhibit 2 could be assembled as an inhaling device; and

(4)  exhibit P3 is a foilpack containing a tablet containing sildenafil, which is a listed Part I poison.

The Magistrate’s consideration of the Evidence and his Findings

13.The Magistrate considered in detail at paragraphs 51 to 62 in the Statement of Findings (Pages 25-26 of the Appeal Bundle):

“51. I have considered the Prosecution witnesses’ evidence. Independently, their evidence was simple, direct and straight-forward. There was nothing illogical or inherently improbable in their evidence. They were unshaken under cross-examination.

52. It is the Defendant’s case that he was framed. I have reminded myself that some allegations may be easy to make but difficult to rebut. Therefore, I should not lightly dismiss any challenge against the testimony of the prosecution witnesses or lightly treat any such challenge as immaterial.

53. Even with this in mind, I do not think there has been any successful challenge on the Prosecution witnesses’ evidence.

54. The case put by the Defence was inherently improbable. The interception of the Southeast Asian male was just minutes before the Defendant was stopped. If the Southeast Asian male really have escaped, the normal thing which would have been done by the two Police officers would be to chase after him.

55. The arrest took place in Nathan Road in the middle of the day. That is a busy area at a busy hour. Surely there would be many people around. The chasing surely would have caught the attention of the crowd around.

56. If the Police officers decided to frame the Defendant, it would be very dangerous for a Police officer to say in public something to the effect that the Defendant was not the person they were after. There was a real risk that the crowd around, whose attention had already been drawn, would hear the conversation and the officers be found guilty of misconduct at best, if not a crime. PW2 could not have said such words in a busy street.

57. Even if I construe the Defendant’s challenge to be one of misidentification, the suggestion is absurd. According to the case put by the Defence, PW2 already noticed that the Defendant was not the person they were after. PW2 has a higher rank than PW1. I do not see how PW1 could have continued with his arrest, and PW2 could have allowed it, without PW2 making the decision to do so. Nothing was put to PW2 to this effect.

58. Further, if the Southeast Asian male indeed escaped, it is inconceivable that PW2 would have time to record the stop and search in her notebook. If they decided to frame the Defendant, there was no reason why PW2 should record the episode of Southeast Asian male in her notebook to leave such a record behind.

59. As for the lack of body camera footage, I do accept the Police officers’ explanation. It was not a situation which they needed to use it at all. The handcuffing was only because the Defendant showed signs of escaping. There was no actual escape, nor was there any struggling.

60. Even if the proper thing to do was to turn on the camera (which is not my ruling), their failure to do so only means that they did not do their job well. There is nothing which remotely suggests that they deliberately do so. It was neither here nor there.

61. In this case, there was no fingerprint evidence. That is to be distinguished from positive proof that no fingerprint of the Defendant could be found on the objects. In any event, there can be many different reasons that there was no fingerprint. I do not think that in the circumstances of the present case, this lack of fingerprint evidence can assist the Defendant in any meaningful way to cast doubt in any part of the Prosecution’s case.

62. Therefore, I do not think there is any truth or possibility of any truth in the Defendant’s challenge, without considering the Defendant’s evidence.”

14.The Magistrate then considered in detail the evidence of the appellant at paragraphs 63 to 67 in the Statement of Findings (Pages 26-27 of the Appeal Bundle):

“63. I turn to consider the Defendant’s evidence. I find his testimony implausible. For the same reasons as above, I find that it is implausible that PW2 would have said that PW1 misidentified the person if they decided to frame him. It is also implausible that PW2, having expressly pointed out that the Defendant was not the Southeast Asian male, would have permitted PW1 to arrest the Defendant without further discussion. There was no mentioning of any discussion in the testimony of the Defendant.

64. In fact, in no part of the Defendant’s testimony did he say he saw the interception of the Southeast Asian male or his escape.

65. Moreover, the Defendant’s testimony was that the officers asked him out of the bus queue and questioned him before searching him. If there was indeed a Southeast Asian male who had escaped, PW1 and PW2 would most likely to be running. If it were misidentification, PW1 would have handcuffed the Defendant immediately when he saw the Defendant before any questioning because to PW1, the Defendant had just escaped. If it were framing, PW1 would likely have pretended that he found the suspect and put on the handcuff. Either way, there was no need to search the Defendant further as the Defendant said they did because the objects were already found. What the Defendant described was that two Police officers approached him in a relatively calm manner, performing duties like the usual stop and search. This is so absurd that I cannot accept as the Defendant’s version as true.

66. I also find it convenient for the Defendant to just mention the breaking of the glass during cross-examination but not during examination-in-chief, and his answers were evasive.

67. I therefore reject the Defendant’s evidence. The Defendant’s evidence, which I rejected, does not cast any doubt on the PWs’ credibility or reliability and does not lend any support to the challenge against PW1 and PW2.”

15.The Magistrate found that the dangerous drug, the inhaling device and the tablet, i.e. the subject matters of Charges 1, 2 and 3 were inside the appellant’s pocket. The Magistrate found that the appellant must be aware of their existence because the items were of considerable size. The Magistrate drew the only irresistible inference that the appellant knew they were in his pocket and he also knew what they were. The Magistrate noted also that the appellant accepted that he did not have any prescription for the tablet, i.e. the subject matter of Charge 3.

16.For the reasons set out in the Statement of Findings, the Magistrate convicted the appellant of all three charges.

Record of Previous Criminal Convictions

17.The appellant had 7 previous convictions prior to this case. The appellant’s first conviction was in 2001 and his last conviction was in 2019. The Magistrate noted that the appellant’s last 4 convictions were all related to dangerous drugs. He had twice been convicted of possession of Part I poison.

18.The Magistrate noted that the appellant had been sentenced to suspended sentence for his first offence in 2001. Thereafter, he was sentenced to various terms of imprisonment. For the dangerous drugs related convictions, the longest sentence the appellant had received was 8 months’ imprisonment. The last conviction was in June 2019, he was sentenced to a total sentence of 6 months’ imprisonment for one count of Possession of a dangerous drug and one of Possession of Part I poison.

DATC Suitability Report and Mitigation

19.The Magistrate called for a Drug Addiction Treatment Centre Suitability Report before sentence.

20.The Magistrate noted the following background of the appellant as revealed by DATC report:

(a)  He is married and lived with his wife in private housing flat prior to his remand. His wife works as a saleslady.

(b)  He came to Hong Kong for asylum seeking in Hong Kong. While in Hong Kong, he was jobless. He sought help from his family in Pakistan and from his wife.

(c)  He claimed that he was first lured to take methamphetamine in early 2016 under temptation of bad peers. Although he claimed that he stopped taking dangerous drugs in February 2021, urine sample collected on 1^st August 2022 showed positive reaction to methamphetamine. The appellant claimed that it was the result of “secondhand Ice” in a game centre.

21.The medical officer of DATC found the appellant to be a drug dependant but since he might be removed from Hong Kong, it would not be practicable for the appellant to undergo a 12-month statutory supervision which is part and parcel of the whole drug abstinence programme. Therefore, the medical officer did not recommend the appellant be admitted to DATC.

22.Counsel for the appellant submitted in mitigation that the quantity of the drugs was small and they were for self-consumption. For the appellant’s history of conviction, counsel submitted that the last conviction was some time ago and the appellant should not be treated as a repeated offender.

23.For the appellant’s status as a Form 8 Recognizance holder, counsel submitted that the present case being one of simple possession, the appellant’s status as a Form 8 Recognizance holder should not be taken as an aggravating factor.

The Magistrate’s Reasons for Sentence

24.In paragraphs 81-85 of the Statement of Findings, the Magistrate stated that in view of the small quantity of dangerous drug involved, the guideline in HKSAR v Mok Cho Tik [2011] 1 HKC 261 (for sentencing possession of dangerous drugs which a bona fide user would normally have in his possession) should be applied. The Magistrate considered the case of HKSAR v Muhammad Waqas [2019] 4 HKLRD 323 and distinguished the present case from that of Muhammad Waqas. In Muhammad Waqas, the Court emphasized that the lower the level of culpability, the less harsh the sentence should be, the sentence should focus more on rehabilitation than punishment. The Magistrate stated in paragraphs 85-6:

“85. However, in Waqas, the quantity of drug which the Court of Appeal was dealing with was an immeasurable quantity. In emphasizing rehabilitation, the Court of Appeal must have in mind a person of clear record, such that rehabilitation is meaningful.

86. In the present case, although the quantity was small, the Defendant had many previous records related to drugs. Previous sentences were unable to stop him from reoffending. Clearly, rehabilitation should no longer be the focus of the Court.”

25.The Magistrate adopted a starting point of 6 months’ imprisonment.

26.At paragraph 87 of the Statement of Findings, the Magistrate indicated that he had sentenced the Applicant on the mistaken assumption that the Applicant was charged with possession of 0.26 gramme of dangerous drug and he proceeded on the basis that it was a measurable quantity, when in fact the appellant was charged with possession of 0.26 gramme of a solid containing dangerous drug, and no specific quantity of dangerous drug was included either on the charge or the Government Chemist’s Certificate. The Magistrate stated at paragraphs 88-89:

“88. While given his drug and criminal history, I do not think that this would have made a difference with the starting point I adopted, this is a matter which I shall leave to the higher Court and I shall say no more on this. I shall continue with my reasons at the time of the sentence, which was based on the erroneous assumption of 0.26 gramme of methamphetamine.

89. Considering that the sentence is not to be one which is rehabilitative in purpose, the (wrongly assumed) quantity of the drugs and the circumstances of the case, I adopt a starting point of 6 months’ imprisonment.”

27.The Magistrate enhanced the starting point of Charge 1 by 2 months in view of the fact that the appellant was a repeated offender, and he further enhanced the starting point by 2 months by reason of the appellant being a Form 8 holder, bringing the sentence on Charge 1 to one of 10 months’ imprisonment.

Grounds of Appeal

Appeal Against Conviction

28.The appellant raises 9 grounds of appeal against conviction in his homemade grounds of appeal against conviction dated 7^th October 2022, 8 of the grounds relate to his appeal against conviction:

Ground 1:	The appellant complains that there was inconsistency between the evidence of PW1 and that of PW2 on the issue whether the officers had searched any other person before they stopped the appellant.
Ground 2:	The appellant complains about the impropriety of the police investigation by pointing out that PW1 and PW2’s body cameras were not turned on at the time the appellant was intercepted.
Ground 3:	The appellant complains that given the fact that there were a lot of people at the offence location, the police should have located eye-witnesses to testify as to what happened at the time, yet they failed to do so.
Ground 4:	The appellant complains that the stores and shops at offence location should have CCTV cameras capturing what happened at the time, yet no such evidence was produced at the trial.
Grounds 5 and 6:	The appellant challenges the credibility of PW1 and PW2’s evidence as to what happened at the offence location and inside the police van.
Ground 7:	The appellant complains that the police had told the appellant that the latter previous convictions provided sufficient evidence to charge the appellant.
Ground 8:	The appellant complains that if he had used the glass bottle and straw, the items should have his DNA and fingerprint. There was no DNA and fingerprint because they were not his.

Appeal Against Sentence

29.The appellant complains that the Magistrate erred in enhancing his sentence because of his previous convictions and he was a Form 8 holder at the material time.

The Applicant’s Request for Fresh Evidence

30.The applicant by a letter dated 7 November 2022, asked for the following documents/information/documents:

(a)  the police notebooks of PW1 and PW2;

(b)  the CCTV footage at the vicinity；

(c)  eyewitness(s) at the scene;

(d)  audio and video recordings of the body cameras of PW1 and PW2；

(e)  any report of fingerprint and DNA examination;

(f)  the urine test report of the applicant from Lai Chi Kok Reception Centre;

(g)  a record of the personal belongings of the appellant；

(h)  the reason why there was a change of Magistrate during the appellant’s trial. The appellant was adamant that there was a female Magistrate who heard the evidence of PW1 and PW2 on the first and second day of the trial. On the third day, the appellant was absent and when the case resumed, his trial was heard by the Magistrate who convicted him. The appellant asked for a full audio record of the first and the second day of the trial.

31.The record shows following chronology:

(1)  on 15^th October 2021, the appellant appeared before Mr Jeffrey Sham, Deputy Magistrate, for plea;

(2)  on 12^th November 2021, the appellant appeared before Ms Peony Wong, Acting Principal Magistrate, for mention；

(3)  on 14^th February 2022, the appellant appeared before Ms Frances Leung, Permanent Magistrate, for trial. Ms Leung was unable to start the trial because of certain issues raised by the appellant. The trial was sent back to the plea court for refixing of a new trial date. On the same day, Ms Peony Wong, Acting Principal Magistrate, set a new trial date, i.e. 16^th May 2022;

(4)  on 16^th May 2022, the appellant pleaded not guilty to all the charges and the trial commenced before Mr Dixon Co, Deputy Magistrate;

(5)  on 25^th May 2022, the trial continued before Mr Dixon Co, Deputy Magistrate. The case could not be finished and was adjourned part-heard to 9^th June 2022;

(6)  on 9^th June 2022, the appellant was absent and a warrant was issued for his arrest;

(7)  on 1^st August 2022, the warrant was executed and the appellant was brought before Ms Peony Wong, Acting Principal Magistrate. The appellant explained to the court that he was absent on 9^th June 2022 because he had COVID;

(8)  on 10^th August 2022, the appellant’s trial continued before Mr Dixon Co, Deputy Magistrate. The Magistrate convicted the appellant on the same day;

(9)  on 24^th August 2022, the appellant was sentenced by Mr Dixon Co, Deputy Magistrate.

32.There is no merit in the appellant’s suggestion that the evidence of PW1 and PW2 had been heard by two different magistrates. The appellant was tried by one magistrate and one magistrate alone. Since the appellant lodged his appeal on 1^st September 2022, he had more than enough time to apply for the audio record of the proceedings, he had no reason to apply for the audio record just days before the appeal hearing. In any event, the court record shows that there is no substance in the appellant’s complaint that the evidence of PW1 and PW2 had been heard by 2 different magistrates on different dates.

33.Mr Cheung for the Respondent informed me that items (b) to (e) requested by the appellant do not exist. The police had not conducted any sweeping to obtain CCTV footage form the vicinity, nor located independent witnesses. As PW1 and PW2 testified in court, they had not turned on their body cameras, hence no audio and video record of their body cameras can be provided to the appellant. There was no fingerprint or DNA examination conducted in the present case.

34.For the other items requested by the appellant, i.e. (a), (f) and (g), the appellant was represented by an experienced lawyer at his trial. If counsel for the appellant considered that these items were useful to the defence case, he could have asked for the items at the time of the trial. The appellant failed to explain satisfactorily why the defence did not ask for items (a), (f) and (g) at trial. When pressed for an explanation, the appellant resorted to complain that his defence counsel did not listen to his instructions. In none of the appellant’s grounds of appeal did the appellant complain that his trial counsel failed to act according to his instructions. The explanation given by the appellant was just a lame excuse. There is no basis for the appellant to seek/adduce any fresh evidence on appeal.

The Respondent’s Submissions

Against Conviction

Ground 1

35.For the complaint made by the appellant that there had been a contradiction between the evidence of PW1 and PW2, namely that when being cross-examined whether they had searched another Southeast Asian male before they intercepted the appellant, PW1 testified they did not, and PW2 testified that they did.

36.The respondent submitted that as noted by the Magistrate, it was put to PW1 that he had stopped another Southeast Asian male a few minutes before stopping the appellant, to which PW1 said he did not remember. There is no contradiction between the evidence of PW1 and PW2. In any event, PW2 confirmed that PW1 and herself did stop another Southeast Asian male shortly before intercepting the appellant.

Ground 2

37.The appellant complains that PW1 and PW2 did not turn on their body cameras during the time they were with the appellant.

38.The respondent submits, as both officers explained, their body cameras are only to be used in limited circumstances, such as when an arrested person tries to escape. The Magistrate accepted their explanations and agreed that PW1 and PW2 had no reason to use their body cameras in the present case, nor was there any evidence suggesting that PW1 and PW2 deliberately refrained from turning on their body cameras. The Magistrate had considered the matter complained of in Ground 2.

Grounds 3, 4 and 6

39.By Grounds 3 and 4, the appellant complains that there was no independent witness and there was no CCTV evidence showing the stop-and-search of the appellant and seizure of the items from him. By Ground 6, the appellant complains that there was no evidence of any video footage showing the search conducted on him inside the police van, and the events that the appellant alleges happened there.

40.The respondent cites the case HKSAR v Fan Chi Wai CACC 343/2015. In Fan Chi Wai, the Court of Appeal said at paragraph 33 that the fact of non-seizure of CCTV by the police is not, in itself, a sufficient basis for quashing a conviction:

“There are many occasions when trials proceed in the absence of evidence that, had it been available, might have been placed before the court. The applicant asserted that the failure of the police to seize the CCTV footage was a serious dereliction of duty bordering on the improper. There was absolutely no evidence whatsoever of any malice or impropriety in the police’s actions. This was nothing more than the not unusual position of a defendant facing trial and claiming that the evidence which was potentially beneficial to him was no longer available” (Emphasis added)

41.The respondents submit that the Court of Appeal’s remark in Fan Chi Wai applies fully to the present case. The Magistrate had considered all the evidence before him carefully before he found the charges against the appellant proved beyond reasonable doubt. The Magistrate should not speculate as to why there was no independent witness or CCTV footage. There is also no evidence to suggest that the police had deliberately refrained from obtaining relevant CCTV footage and locating an independent witness. The appellant fails to show that his conviction is unsafe because of the absence of independent witness, CCTV footage and video footage.

Ground 5

42.The appellant complains that during his evidence, the demonstration he was asked to do was to put the seized items into the left pocket of the pair of shorts he was wearing at the time of the offences. He was not asked to put the items into the right pocket. The appellant says at the material time he had other items in his right pocket therefore the glass bottle forming the inhaling device could not fit inside.

43.The respondent submits that the evidence of PW1 was that he seized the bag, the glass bottle and the plastic straw forming part of the inhaling device, and the tablet from the appellant’s right pocket. Under cross-examination, PW1 was able to put the appellant’s wallet and the glass bottle into the right pocket of the pair of shorts the appellant was wearing at the time. PW2 also recalled seeing part of the wallet sticking out of the appellant’s right pocket. During the appellant’s evidence, he was asked to put on the pair of shorts and insert the wallet and glass bottle into both the left and right pockets. The Magistrate observed that when the items were placed in the appellant’s right pocket a corner of the wallet was sticking out. The observation is consistent with the evidence of PW1 and PW2, which the Magistrate accepted.

Grounds 7 and Ground 8

44.In Grounds 7 and 8, the appellant complains that there was no fingerprint evidence adduced linking him with the bag, the inhaling device and the tablet. The respondent submits that the same complaints had been made by the Defence at the trial and the Magistrate was aware of the complaints. The Magistrate pointed out that the absence of fingerprint evidence should be distinguished from positive proof that no fingerprint of the appellant could be found on the seized items. The Magistrate also pointed out that there can be many reasons why there was no fingerprint on the items, and the lack of fingerprint evidence in the present case did not cast doubt on the Prosecution case in any meaningful way.

Against Sentence

Ground 9

45.The appellant complains that the Magistrate erred in enhancing the appellant’s sentence by reason of his previous convictions and his status as a Form 8 holder at the material time.

46.The respondent submits that given the fact that (1) the appellant was also convicted of the offence of possession of apparatus fit and intended for inhalation of a dangerous drug and (2) the apparatus in question contained traces of methamphetamine, the Court can infer that the quantity of dangerous drug in the appellant’s possession was sufficient for use, hence the present case is not the type of case envisaged by the Court of Appeal in HKSAR v Muhammad Waqus, in which the Court of Appeal held that the Mok Cho Tik’s guidelines could only be applied to cases if the prosecution adduced material that would enable the court to find by direct evidence or inference, that the quantity of narcotic in the dangerous drug was sufficient for use. If the court was unable to make such a finding, the sentence would have to be based on possession of a quantity of narcotic which was insufficient to be measured or used, with a greater focus on rehabilitation than punishment. The lower the level of culpability, the less harsh the sentence should be.

47.The respondent accepts that the quantity of narcotic in the present case is immeasurable, however the Magistrate correctly distinguished the present case from the type of case which the Court of Appeal in Waqas envisaged, for which a sentence focused on rehabilitation was appropriate. The Magistrate was right to point out that, in emphasizing rehabilitation, the Court of Appeal must have had in mind a person of clear record, such that rehabilitation is meaningful. The appellant has 7 drug-related criminal records for which sentences of imprisonment were imposed, from 2016 to 2019. The Magistrate was right to treat the appellant as a repeated offender and that previous sentences were unable to stop the appellant from re-offending. The respondent submits that the Magistrate was correct in recognizing that rehabilitation should no longer be the focus of the sentence he was to pass.

48.The respondent submits that the fact that the appellant was also convicted of the offence of possession of apparatus fit and intended for inhalation of a dangerous drug and the fact that the apparatus in question contained traces of methamphetamine lend support to the inference that the dangerous drug possessed by the appellant was sufficient for use. This further distinguished the present case from the type of case envisaged by the Court of Appeal in Waqas.

49.The appellant submits the 10 months’ imprisonment for Charge 1, which was based on a starting point of 6 months and an enhancement because of the criminal records of the appellant and his status as a Form 8 holder is neither manifestly excessive nor wrong in principle.

50.The respondent submits that it is trite that previous convictions of an accused constitutes an aggravating factor, particularly when the earlier offences is identical or similar. It is the fact of repetitive offending for the same type of offence which might warrant aggravation of sentence. The respondent cites the case HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 in which the Court of Appeal held that a starting point may need to be increased “to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other” (Emphasis added). The respondent submits that the Magistrate was correct to enhance the starting point by reason of the appellant being a persistent offender.

51.For the appellant’s complaint that he was discriminated against by the Magistrate because he was a Form 8 holder, the respondent cites the authority HKSAR v Norena Guitierrez Christhian Andres [2015] HKCU 957. The Court of Appeal considered the rationale for treating a defendant’s foreign status as an aggravating factor, said that:

“[26]…punishing this category of offender [i.e. Form 8 holder] more heavily than others is not to discriminate him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender ‘s immigration status as a factor aggravating the culpability…” (Emphasis added)

52.The respondent submits that in Norena Guitierrez Christhian Andres, the Court of Appeal recognized at paragraph 27 of the judgment the caveat for taking into account an offender’s immigration status as an aggravating feature is that the offence committed must have a serious detrimental effect on the community at large, or significantly and prejudicially impact Hong Kong’s reputation. The Court of Appeal at paragraph 29 held that simple possession of dangerous drugs was an offence having both of these effects.

53.The respondent submits that the Magistrate properly gave consideration to the above principles.

54.The respondent submits that, as the Court of Appeal said at paragraphs 14 and 23 of the judgment in HKSAR v Sandagorj Altankhuyag & Another [2014] 1 HKC 206. “…the values to be placed on different aggravating features are best assessed by the trial judge”, the Magistrate cannot be faulted for enhancing the 6-month starting point for (1) the appellant being a persistent offender, and (2) the appellant being a Form 8 holder. It was within the Magistrate’s discretion to impose a 2-month enhancement on Charge 1 and a 1-week enhancement on Charges 2 to 3, for each of these aggravating factors.

55.On a handwritten, undated document titled “To lodge Appeal Against Long Sentence”, the appellant provides references to other drug-related cases in which sentences shorter than 10 months’ imprisonment have been passed.

56.The respondent cites the judgment of the Court of Appeal in HKSAR v Cheng Sau Yuk [2013] 2 HKC 355 in which the Court of Appeal said at paragraph 22 of the judgment, “a disparity in sentences imposed on different offenders by different judges on different occasions for the same offence(s) is not, in itself, a ground for an appellate court to interfere with a sentence if the sentence is otherwise appropriate having regard to the nature of the offence and the offender himself.”

57.The respondent also cites the judgment of the Court of Appeal in HKSAR v Chow Tak Fuk (unreported, CACC 428/2004) in which the Court of Appeal said at paragraph 6 of the judgment “it is well-established that where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper.”

58.The respondent submits that each case turns on its own facts, and little assistance can be gained in comparing the appellant’s sentence with sentences passed in other cases by other Courts. In any event, the sentencing decisions provided by the appellant are not binding on this Court.

59.The respondent submits that the overall sentence of 10 months’ imprisonment is neither manifestly excessive nor wrong in principle.

Consideration

Appeal Against Conviction

Ground 1

60.The Magistrate noted at paragraph 21 of the Statement of Findings the evidence of PW1:

“21. It was then put to PW1 that a few minutes prior to his stopping the Defendant, he stopped a Southeast Asian male. PW1 said he did not remember.”

61.As for the evidence of PW2 on the same topic, the Magistrate noted at paragraphs 28 and 29:

“29. She (PW2) was asked about stop and search of other people on the material day. She was given leave to refer to her notebook and she confirmed that she recorded that shortly before PW1’s intercepting the Defendant, they stopped a Southeast Asian male during 4:40 pm to 4:42 pm. PW1 was also present. The details were not on her notebook, but should be on the notebook of the officer who performed the search.

30. It was put to her that the Southeast Asian male escaped from PW1’s custody. The illicit items were all found on that Southeast Asian male. PW1 then saw the Defendant and said the Defendant was the escaped person. PW2 told PW1 in Punti that the Defendant was not. PW1 nonetheless said they should continue with their duties. PW2 denies all of these.”

62.In my judgment, there is no contradiction between PW1 and PW2’s evidence on this issue as PW1’s evidence was not that he had not searched another Southeast Asian male but that he did not remember. For what was put to PW2 under cross-examination, PW2 agreed to the extent that PW1 and herself did stop another Southeast Asian male shortly before intercepting the appellant. She denied the rest of what was put to her by defence counsel. In my judgment, the Magistrate, having heard all the evidence, was entitled to accept the evidence of PW2 on this disputed issue.

63.Ground 1 fails.

Ground 2

64.The same complaint had been made by defence counsel in his closing submissions. The Magistrate had obviously considered the matter. He summarized the criticism made by defence counsel at paragraph 48 under “Closing Submissions”:

“48. There was no body camera footage, despite the existence of body camera. The camera could have been used in a situation such as that in the present case, but it was not. …”

65.The Magistrate found at paragraphs 59 and 60 of the Statement of Findings:

“59. As for the lack of camera footage, I do accept the Police officers’ explanations. It was not a situation which they needed to use it at all. The handcuffing was only because the Defendant showed signs of escaping. There was no actual escape, nor was there any struggling.

60. Even if the proper thing to do was to turn on the camera (which is not my finding), their failure to do so only means that they did not do their job well. There is nothing which remotely suggests they deliberately to so. It was neither here nor there.”

66.PW1 and PW2 both testified that their body cameras would only be used in limited circumstances, e.g. when an arrested person attempts to struggle or to assault the police officers, when the arrested person is being warned by the police, or the arrested person tries to escape.

67.In my judgment, the Magistrate was entitled to accept the explanations of PW1 and PW2 as to why their body cameras were not turned on. The Magistrate had adequately dealt with the matter complained of in Ground 2 in the Statement of Findings.

68.There is no merit in Ground 2.

Grounds 3, 4 and 6

69.I agree with the respondent that Grounds 3, 4 and 6 can be dealt with together. Grounds 3 and 4 concern the lack of independent witness and CCTV footage showing the stop-and-search of the appellant. Ground 6 concerns the lack of video footage showing the search conducted on the appellant inside the police van.

70.There was no independent witness called and there was no evidence of any CCTV footage or video footage showing how the appellant was searched at the scene and what happened inside the police van. If there were such evidence, the Magistrate had to evaluate and consider the evidence. As there was no such evidence, the respondent is right to submit that there was no need for the Magistrate to speculate on the reason for the absence of certain evidence. Indeed, it would have been wrong for him to do so. In HKSAR v Lam Cho Yee (林祖兒) [2021] HKCFI 3593, it was held that in the absence of any CCTV evidence, the trial magistrate was right not to speculate on what the CCTV footage would have shown.

71.The respondent is right to submit that there is a complete lack of evidence to suggest that the police had deliberately refrained from obtaining CCTV footage and locating an independent witness. The observation made by the Court of Appeal at paragraph 33 of the judgment in Fan Chi Wai applies equally to the present case, the absence of CCTV/camera footage is not, in itself, a sufficient basis for quashing a conviction. The observation applies also to the appellant’s complaint for the absence of an independent witness.

72.In my judgment, the matters complained of in Grounds 3, 4 and 6 do not render the conviction unsafe.

73.Grounds 3, 4 and 6 fail.

Ground 5

74.Ground 5 concerns the demonstration that the appellant was asked to make during his evidence. The appellant complains that he was only asked to put the seized items into the left pocket of the pair of shorts he was wearing at the time, and not into the right pocket. The appellant says as he had other items in his right pocket at the material time the glass bottle forming part of the inhaling device could not fit inside.

75.The demonstration complained of by the appellant was referred to by the Magistrate at paragraphs 39 and 40 of the Statement of Findings:

“39. The Defendant was able to put in the items into the pocket of the shorts while he was wearing the pair of shorts, except that a corner of the wallet stuck out of the pocket. When they were put in the left pocket, the two sides of the corner which were sticking out measured approximately 1 inch and 1.5 inches. At one point, the Defendant was able to put in the entire wallet onto the left pocket without any part sticking out.

40. The Defendant was asked to put in the glass bottle. It could be placed entirely inside his right pocket, but the pocket was opened approximately as wide as was shown in the photo in Exhibit P5(8). He was asked to further put in the wallet into the right pocket. The bulk of the wallet was inside, but a corner was sticking out. At one point, the sides of the corner measured approximately 2 inches by 2.5-3 inches. Later, the wallet was pushed further in and the measurement became approximately 1.5 inches by 2-2.5 inches.”

76.In the Defence closing submissions. It was submitted that the demonstration showed that it would be difficult to put in all the items, especially when there were 2 mobile phones. Contrary to the appellant’s complaint, the appellant was asked to put on the pair of shorts and insert the wallet and glass bottle into both the left and right pockets. Ground 5 is factually incorrect.

77.PW1 gave evidence that he seized the bag, the glass bottle and the plastic straw forming part of the inhaling device and the tablet from the appellant’s right pocket. Under cross-examination, PW1 was able to put the appellant’s wallet and the glass bottle into the right pocket of the appellant’s right pocket, as the Magistrate noted at paragraph 17 of the Statement of Findings. PW2 gave evidence that she recalled seeing part of a wallet sticking out of the appellant at the material time. For the demonstration made by the appellant, the Magistrate made the observation that when the items were placed in the appellant’s right pocket a corner of the wallet was sticking out. In my judgment, the Magistrate, having seen the demonstration in court, was entitled to make the observation and find that the demonstration by the appellant is consistent with the evidence of PW1 and 2, which the Magistrate accepted.

78.There is no merit in Ground 5. Ground 5 fails.

Grounds 7 and 8

79.The Magistrate was aware that no fingerprint evidence was adduced linking the appellant with the bag, the inhaling device and the tablet. The Magistrate said at paragraph 61:

“61. In this case, there was no fingerprint evidence. That has to be distinguished from positive proof that no fingerprint of the Defendant could be found on the objects. In any event, there can be many different reasons that there was no fingerprint. I do not think that in the circumstances of the present case, this lack of fingerprint evidence can assist the Defendant in any meaningful way to cast doubt in any part of the Prosecution’s case.”

80.In my judgment, the issue of lack of fingerprint evidence had been adequately considered by the Magistrate and his reasoning and conclusion cannot be faulted.

81.Grounds 7 and 8 fail.

Appeal Against Conviction - Re-hearing

82.All the grounds of appeal against conviction raised by the appellant fail for the reasons given. I hold a re-hearing on the evidence before me. I am satisfied that the evidence proves beyond reasonable doubt each of the elements of Charges 1, 3 and 3.

83.The appeal against conviction is therefore dismissed.

Appeal Against Sentence

84.On a handwritten document titled “To Appeal Against Long Sentence”, the appellant provides references to other drug-related cases in which sentences shorter than 10 months were passed.

85.The sentencing instances referred to by the appellant are not binding on this court. No assistance can be derived from comparing the appellant’s sentence in the present case with the sentencing decisions in other cases by other courts. The Magistrate sentenced the appellant on the facts as found by him. Applying the principle in Cheng Sau Yuk to the present case, there is no basis for this Court to interfere with the terms of imprisonment passed in this case if they are otherwise appropriate having regard to the nature of the offences and the appellant himself.

86.As said, the Magistrate sentenced the appellant on the mistaken assumption that he was charged with possession of 0.26 gramme of dangerous drug and he proceeded on the basis that it was a measurable quantity, when in fact the appellant was charged with possession of 0.26 gramme of a solid containing dangerous drug, and no specific quantity of drug was included either on the charge or the Government Chemist’s Certificate. Nevertheless, the Magistrate took the view in the Reasons for Sentence that given the appellant’s criminal record, no difference would have been made to the starting point he adopted.

87.In my judgment, looking at the matter by way of re-hearing, a starting point of 6 months’ imprisonment is appropriate for Charge 1 and the mistake made by the Magistrate at the time of sentencing does not affect the outcome of this appeal.

88.The appellant complains that the Magistrate erred in enhancing the starting point on the basis of his previous convictions.

89.For the criminal record of the appellant, the Magistrate said at paragraphs 74 and 75 of the Reasons for Sentence:

“74. The Defendant has 7 previous convictions. His last 4 convictions were all related to dangerous drugs. In 2 of these occasions, he was also convicted of possession of Part I poison.

75. For his previous criminal convictions, he has been sentenced to suspended sentence for his first offence in 2001. Thereafter, he was sentenced to various terms of imprisonment. For drug offences specifically, the longest sentence he had was 8 months’ imprisonment. The last conviction was on 28^th June 2019, he was sentenced to 6 months’ imprisonment that time.”

90.The Magistrate distinguished the present case from HKSAR v Muhammad Waqas [2019] 4 HKLRD 323 at paragraphs 82 to 85 of the Reasons for Sentence:

“82. However, in HKSAR v Muhammad Waqas [2019] 4 HKLRD 323, the Court of Appeal revisited Mok Cho Tik and said that “one is left wondering whether the court ever contemplated that its 12-18 months guideline would apply to quantities less than one gramme”.

83. Subsequent magistracy appeal cases mostly considered that for small quantities of drugs, Mok Cho Tik does not apply. I am of the view that in this case, the quantity of the drugs is, while not immeasurable, small and I should not adopt the guideline in Mok Cho Tik.

84. In Muhammad Waqas, it was said that the lower the level of culpability the less harsh the sentence will be, and a less harsh sentence would be a very short custodial sentence or more likely a non-custodial sentence. The sentence would have a much greater focus on rehabilitation than punishment. The very short sentence is one that is measured in days or weeks rather than months so as not to inhibit his ultimate rehabilitation.

85. However, in Waqas, the quantity of drug which the Court of Appeal was dealing with was an immeasurable quantity. In emphasizing rehabilitation, the Court of Appeal must have in mind a person of clear record, such that rehabilitation is meaningful.”

91.The Magistrate said at paragraph 86:

“86. In the present case, although the quantity was small, the Defendant had many previous records related to drugs. Previous sentences were unable to stop him from reoffending. Clearly, rehabilitation should no longer be the focus of the Court.”

92.The Magistrate said at paragraphs 89 and 90:

“89. Considering that the sentence is not to be one which is rehabilitative in purpose, the (wrongly assumed) quantity of the drugs and the circumstances of the case, I adopt a starting point of 6 months’ imprisonment.

90. I shall make it clear that at this stage I have only considered the Defendant’s criminal record in deciding that the sentence should not be one focusing on rehabilitation. Save to that extent. I have not adopted a higher starting point and I have not yet enhanced the sentence by reason of the Defendant’s being a repeated offender.”

93.For Charge 1, the Magistrate enhanced the sentence by 2 months by reason of the appellant being a persistent offender. For Charge 2, the Magistrate took a starting point of 4 weeks’ imprisonment and for the same reason, enhanced the sentence by 1 week. For Charge 3, the Magistrate took a starting point of 6 weeks’ imprisonment and for the same reason, enhanced the sentence by 1 week.

94.In my judgment, given the previous criminal convictions of the appellant, the Magistrate was right to observe at paragraph 86 of the Statement of the Reasons for Sentence that “… the Defendant had many previous records related to drugs. Previous sentences were unable to stop him from reoffending. Clearly, rehabilitation should no longer be the focus of the Court.”

95.In making the aforesaid remark at as he did, obviously the Magistrate was aware of the observation made by the Court of Appeal in Chan Pui Chi that a starting point may need to be increased “to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other.” In my judgment, the 2 months’ enhancement for Charge 1 and the one week’s enhancement for each of Charges 2 and 3 were correctly made and are appropriate.

96.The appellant complains that he was discriminated by the Magistrate because he was a Form 8 holder.

97.The Magistrate, before sentence, invited submissions from counsel representing the appellant:

“80. I invited submissions in relation to the Defendant’s status as a holder of Form 8 Recognizance as an aggravating factor. It was submitted that this is a case of simple possession. The status of Form 8 Recognizance holder should be taken as an aggravating factor only in serious case such as trafficking and robbery, and this is not such a case.”

98.The Magistrate dealt with the issue and gave detailed reasons why he took the appellant’s status as Form 8 holder as an aggravating factor at paragraphs 93 to 101:

“93. In respect of his status as a Form 8 Recognizance holder, I also disagree with the submissions of the Defence lawyer.

94. In HKSAR v Sandagdori Altankhuvag & Anor [2014] 1 HKC 206, Macrae J (as he then was) said at paragraph 21:

‘where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime. However, it must be recognized of course that there are crimes committed by torture claimants which do not affect the community at large and therefore it is a matter for the sentencing judge to consider in every case.’

95. The key determining factor of whether the status as a Form 8 holder should be an aggravating factor is the effect of the crime on the community at large, not the seriousness of the offence. In considering the effect of the crime on the community, Hong Kong’s reputation for order and security is also a factor to be considered.

96. The rationale behind, or part of it, was that by allowing torture claimants to live in the community and be given liberty pending the result of their torture claims, Hong Kong is to exposed to risk of crime to which the Hong Kong community would not otherwise be exposed.

97. This was recognised in various Court of Appeal cases, including HKSAR v Singh Gursevak [2019] 2 HKLRD 274.

98. Specifically in HKSAR v Norena Gutierrez Christhian Andres (unreported, CACC 319/2014. 30^th April 2015), the Court of Appeal had to consider whether a charge of simple possession can be said to be in the category of offence described in Sandagdori. In this relation, the Court of Appeal held at paragraphs 28-29:

‘…Counsel for the appellant argues that the addict harms no-one but himself and his conduct, even though criminal, does not have the requisite harmful impact on Hong Kong. We do not agree. It is the drug addict who sustains the trafficking and is at the core of the drug culture. But for his need there would be no trafficking. However, he not only sustains the trafficker, he may, as happened here, himself become a trafficker. This usually occurs because the addict is lacking in sufficient income to find his addiction or he may mix with other addicts and be a party to the sharing of drugs. The concept of latent risk, which is part of our sentencing law for the offence of simple possession, is based upon a recognition that there exists a risk that drug addicts will become involved in some form of trafficking, either commercial or social.

We are of the view, therefore, that simple possession is the type of offence which can be said to seriously affect the community at large. We are also of the view that it can be said to have the effect of tarnishing Hong Kong’s reputation…’

99. The Court of Appeal used the term latent risk, but my understanding is that it is limited to the latent risk of redistribution as identified in Mok Cho Tik. Even if I am wrong, the fact that drug addicts would sustain traffickers and would tarnish Hong Kong’s reputation remains true regardless of the latent risk of redistribution.

100. In this present case, I consider the Court of Appeal’s concerns in Norena apply with full force. The Defendant, as a drug addict, would indirectly provide financial support to the drug traffickers, who often have triad backgrounds. There is also the latent risk that he would eventually start trafficking. I shall add that very often crimes are, in one way or another, drug related. When drug addicts cannot support their drug purchase financially, they may commit other crimes such as theft or even robbery. Drug addicts, especially those abusing methamphetamine, which is the subject matter of Charge 1, may become violent. There is therefore also a latent risk that the Defendant might commit other crimes. The effect of the defendant’s crimes on Hong Kong’s reputation is beyond doubt.

101. Therefore, I find that the Defendant’s status as a Form 8 Recognizance holder shall be taken as an aggravating factor in this case….”

99.The Magistrate enhanced the sentence for Charge 1 for further 2 months. For Charges 2 and 3, the Magistrate made a further enhancement of 1 week for each of the Charge.

100.It is clear to me that the Magistrate was aware of the principles in the cases of Norena, Singh Gursevak and Sandagdori Altankhuvag & Anor. The Magistrate applied the principles of these authorities correctly. For the reasons given in Norena, an enhanced sentence can be imposed on a Form 8 holder for the offence of simple possession. The Magistrate was right to find that there was a latent risk that the appellant would eventually start trafficking in dangerous drugs, and his conduct had the effect of tarnishing Hong Kong’s reputation.

101.I agree with the respondent’s submissions that it was entirely within the Magistrate’s decision to impose a 2-month enhancement on Charge 1, and a 1-week enhancement on Charges 2 to 3 for each of the two aggravating factors.

102.All the grounds of appeal against sentence fail.

Appeal Against Sentence: Re-hearing

103.All the grounds of appeal against sentence raised by the appellant fail for the reasons given. I hold a re-hearing based on the facts found by the Magistrate and the background of the appellant. The individual terms of imprisonment are correct in law and appropriate in terms of length. The overall sentence of 10 months’ imprisonment is neither manifestly excessive nor wrong in principle.

104.The appellant’s appeal against sentence is also dismissed.

Mr Herbert Cheng, PP of the Department of Justice, for the respondent

The appellant appeared in person