HKSAR v. Chiu Hoi-ying

HCMA 329/2021

[2023] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 329 OF 2021

(ON APPEAL FROM STCC 3215 OF 2020)

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JUDGMENT

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Introduction

1.The appellant was found guilty after trial by David Chum Yau-fong, Magistrate, on 10 June 2021, of two offences of trafficking in dangerous drugs, contrary to S4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced on 23 June 2021, to 3 months’ imprisonment on each of Charges 1 and 2, with 1 months’ imprisonment on Charge 2 to run consecutively to Charge 1, making a total sentence of imprisonment of 4 months. By her notices of appeal, dated 23 June 2021, the appellant appealed against that conviction and sentence on the standard grounds. She has been on bail since 23 June 2021. The appellant first appeared before this court on 17 January 2022, at which time she was unrepresented. The matter was adjourned to enable her to obtain representation. Perfected Grounds of Appeal dated 21 October 2022 were settled but not served upon the Court. The Amended Perfected Grounds of Appeal dated 12 December 2022, have now been filed and served. Re-Amended Perfected Grounds of Appeal were filed and served on 27 February 2023.

Prosecution Case

Charge 1

2.The appellant and her boyfriend, Szeto Long-yat (“Szeto”), were operating an Instagram account under the name of “weedbabe.420” (also identified as “AkaStoner Girl”) at the material time. DPC 12815 (PW1) was part of a Narcotics Bureau operation investigating people using mobile applications to sell dangerous drugs. For this purpose, an Instagram account “AlexFok0520” was created. PW1 used that Instagram account to connect to the “weedbabe.420” account on Tuesday 2 June 2020, initially by text[1]. The first conversation on 2 June 2020[2], covers a request by PW1 for the price of cannabis and arrangements to meet up. It includes one voice message, which the prosecution say is the appellant, stating that delivery would be made to Kowloon East[3]. It could not be made until Thursday 4 June.

3.A further connection was made between the two Instagram accounts on Wednesday 3 June[4], during which the appellant sent another voice message to PW1 attempting to arrange a meeting on the following morning. On Thursday 4 June at 12:08 pm, there was an Instagram message to PW1 from a WhatsApp number. That number is registered to Szeto. At the same time, there were several further Instagram messages[5] arranging a place to meet. These included 4 voice messages from the appellant in which she mentioned that they were running late and arranging to meet up at a location close to Ikea. In all, during Thursday 4 June, there were 8 text messages from 12:08 pm onwards and 4 voice messages from the appellant on the Instagram account of weedbabe.420. There were also WhatsApp messages between PW1 and Szeto’s phone. These started at 12:38 pm. Between 12:38 pm to 12:40 pm, a meeting was arranged to take place at 3:00 pm. Between 3:29 pm and 3:47 pm there were further messages indicating that “they” were running late. At 3:43 pm, PW1 received a voice message by WhatsApp from the appellant who apologised once again for being late[6]. PW1 eventually met the appellant and Szeto outside Aji Ichiban at the Sha Tin MTR station. The appellant once again apologised for being late[7] and told PW1 that she would “give him some small gift next time”. This was a reference to “a piece of cookie”, which had been mentioned during the text messages. It was the appellant who handed over a transparent packet of herbal cannabis[8] to PW1. He gave her $650 in return.

Charge 2

4.Similar Instagram text messages were exchanged to set up another purchase[9]. This was then continued on WhatsApp[10]. The WhatsApp conversation included voice messages. These voice messages were from Szeto[11]. On 10 June 2020, PW1 met the appellant and her boyfriend once again within the Sha Tin MTR station. PW1 was given two packets of herbal cannabis secreted inside a candy packet[12], which had been handed to him by the appellant. The candy packet included the herbal cannabis and the cookie, which had been promised on the previous occasion and mentioned in text messages[13]. PW1 asked Szeto how the cookie should be consumed. Szeto said half of it should be eaten first and he would get high.

5.The herbal cannabis under Charge 1 was found to weigh 3.96g and under Charge 2 was found to weigh 4.88g.

Defence Case

6.The appellant was arrested on 6 August 2020 and denied knowledge of the transactions saying “It has nothing to do with me. I don’t even know my boyfriend Szeto Long-yat was selling cannabis to others. I just stayed with him that day”. She was positively identified by PW1 on an identification parade held on 26 August 2020. Later, when questioned, as to Charge 1, she said inter alia:

“ A2: “My boyfriend and I needed to drive to Sha Tin that day. While driving, my boyfriend asked me to help him record a voice message to someone saying “We’ll be there in 5 minutes”. We arrived at the mini bus stop at New Town Plaza, Sha Tin after I finished recording the voice message for him. We parked the car. After that, my boyfriend asked me to help him carry a packet of stuff in my bag/pocket since he did not have any pockets in his pants/shorts. Therefore, I helped my boyfriend carry it in my bag/pocket. Since he was my boyfriend, I didn’t pay any attention to what it was.

Q12: Do you have an Instagram account named weedbabe.420?

A12: No. Had never seen it.

Q13: On the day of the offence, namely 3:47 pm on 4 June 2020, undercover Detective Police Constable 12815 handed over 650HKD………. where are they now?

A13: That day, after receiving the money, my boyfriend kept the notes in his bag/pocket. I don’t know where they are now.”

7.When questioned as to Charge 2, the appellant said inter alia:

“ A4: “That day, my boyfriend and I went on a date and drove to the MTR station. My boyfriend said he needed to give something to someone. So I went with him.

Q5: Can you state in detail the process at that time.

A5: At around 7 or 8 O’clock that day, my boyfriend and I parked the car at the minibus stand at New Town Plaza. After my boyfriend had contacted someone by phone, he gave me a packet of stuff from the storage area of the car door of the driver’s seat, saying it was to be given to someone in a moment.

Q6: Can you describe what the packet of stuff was like? Did you know what it was?

A6: I remember that it was a pink candy paper bag, but I didn’t know what was inside. But I remember that it seemed to be a cookie inside.

Q7: What happened then?

A7: Then I carried the packet of stuff and got off the car with my boyfriend and walked to the MTR station exit near the bus stop. My boyfriend said that the person wasn’t there yet, and we had to wait for a moment.

Q8: What happened after that?

A8: I remember we had to wait for 5 minutes. After that a man in the gate area looked for us. Then my boyfriend asked me to give him the packet of stuff.

Q9: What happened then?

A9: I remember that the man did give us money but I don’t remember whether I received it or my boyfriend did.

Q15: You mentioned that your boyfriend asked you to give someone a packet of stuff contained in a pink candy paper bag. What was it?

A15: I didn’t know. I didn’t ask.

Q16: You were with your boyfriend at that time. Why didn’t he make the delivery himself to the person but asked you to make the delivery to the person?

A16: I had no idea. He asked me to do it, so I did it. I didn’t ask why.

Q19: Do you remember where the money finally received was?

A19: I don’t remember who received it at that time but the money was definitely not with me because it was my boyfriend who sold it to others.”

8.The appellant did not give evidence on her own behalf. In the Admitted Facts P14, she admitted inter alia that she and Szeto were lovers; she had handed over the cannabis to PW1 on both 4 June 2020 and 10 June 2020 and had received $650 and $800 from him[14].

9.The appellant called Szeto (DW1) as her sole witness[15]. He said he had come to know the appellant in February 2020. He started dating her two months later. They dated for two to three months but then broke up. He maintained that the appellant did not know that he was dealing in dangerous drugs[16]. The Instagram account called “AKStonergirl” was opened by him using his mobile number and email. The WhatsApp messages were from his mobile number.

10.As for the 4 June 2020, Szeto said he had arranged with PW1 to meet up at 3:00 pm that day but he had also arranged a date with the appellant and so he had picked her up at “2:00 pm something” and had then driven to Sha Tin, New Town Plaza. He had told the appellant that a friend was waiting for him and that he had to hand over something. The appellant agreed to go with him. Because he was driving, he had asked the appellant to voice message PW1 in order to arrange the meeting. When they arrived in Sha Tin, he had asked the appellant to hold the packet for him as he had no space in his trouser pocket. She put the packet in her own trouser pocket. As the friend had been waiting for them for so long and had become impatient with them, he had asked the appellant to tell him on his behalf, that PW1 would receive a gift on the next occasion. When they met with PW1, the appellant had told him there would be a small gift for him next time.

11.As for the 10 June incident, he had not intended the appellant to be with him that day because he had arranged several drug transactions and he did not want her to be with him. But she had got off work early and, as he had not wanted to reject her, he had picked her up at around 7:30 pm before the handover to PW1, which was to be at 8:00 pm. After he picked the appellant up, he had explained he needed to meet up with PW1 first. He said: “Can you come along with me first? The one I arranged to meet was the one I meet last time”. Once they had parked the car, he gave the appellant the packet and asked her to give it to his friend on his behalf. Szeto did not remember that he had told PW1 he would get high from the cookie but he had said something to PW1 about this. The appellant could not hear this conversation because the MTR station was busy and she was 2-3 peoples distance away. He accepted that the appellant received $650 and $800 for the two incidents and that she had given him the money in the car. She had shared no part of it.

12.Under cross-examination, Szeto stated that the appellant had sent the two voice messages because he was busy driving. However, he had sent all of the text messages himself at a time when the traffic was less busy. The appellant had not sent them. He wasn’t sure whether the other voice messages on 4 June had been sent by the appellant as the account had previously been used by his ex-girlfriend because he and she had operated the account together[17]. He also stated that he had other girls working for him on 4 June 2020. He told the Court that the appellant had in fact looked at the transparent bag containing the herbal cannabis [P1], when he had given it to her and then she had put it into her pocket. She had asked what it was and he had told her it was Chinese medicine to enhance sexual performance in men. On 10 June 2020, [P5 & P6] were in a candy bag and she had asked about the cookie but he had explained the Chinese medicine had been baked into it. He had asked the appellant to carry the packets and hand them over in order to distance himself from the risk of being caught as she was less likely to be considered suspicious[18]. He had also not wanted to leave her in the car as it was very hot.

Reasons for Conviction and Sentence

13.The learned Magistrate identified that the issue was one of knowledge[19]. PW1 was the only witness to give evidence and was not the subject of cross-examination. The learned Magistrate identified what he believed to be the salient points of his oral evidence, which was that on 4 June 2020, the appellant handed over the drugs and received the cash but on the 10 June 2020, it was Szeto who handed over the drugs[20].

14.The appellant chose not to give evidence but called Szeto to give evidence on her behalf. He noted that Szeto had pleaded guilty at the first opportunity. He noted that Szeto maintained that the appellant had no knowledge that he was trafficking in dangerous drugs. He had opened the Instagram account using his phone number and email. It was Szeto who had arranged both meetings with PW1 without informing the appellant beforehand. He had informed her about meeting PW1 on 4 June only after he had picked her up. He had asked the appellant to send PW1 voice messages because he was driving at the time. He had then asked the appellant to hand over the dangerous drugs and to say that PW1 would be given a gift the next time they met. As for the incident on 10 June, the learned Magistrate noted that Szeto stated he had arranged the meeting and that the appellant did not know it involved dangerous drugs. The appellant could not hear the conversation he had with PW1 within the MTR station when Szeto had said the cookie would make him high. The appellant had not shared the money he had received for the sales. Under cross-examination the learned Magistrate found him both evasive and offensive[21]. From time to time he noted Szeto had refused or avoided answering questions and his overall impression was that his evidence was inconsistent, conflicting and contradictory[22].

15.Having rejected the evidence of Szeto, the learned Magistrate nevertheless reminded himself that the burden of proof remained with the prosecution. PW1’s evidence had not been the subject of cross examination and had not therefore been undermined. Having found PW1 honest and reliable, he drew the irresistible inference from his evidence that the appellant knew that she was dealing in drugs[23]. He did so by finding the following:

As to Charge 1:

i)  the appellant and Szeto were lovers;

ii)  the appellant had made the voice messages on 4 June;

iii)  the appellant had apologised for the delay;

iv)  the appellant had offered a gift on the next occasion as if it was a business transaction;

v)  the appellant received money from PW1 and therefore must have known she was selling something to him; and

vi)  P1 was in a transparent plastic bag and the contents could be seen by the appellant.

As to Charge 2:

i)  Whether or not the appellant was the one to hand over the drugs to PW1, she was close enough to hear the conversation between PW1 and DW1; and

ii)  It was the appellant who was given the $800 for the drugs.

16.In respect of sentence, the learned Magistrate recognised that the appellant was 22 years of age and of good character. The Court had the benefit of a probation report which indicated that the defendant was living with her boyfriend at the time of offending and was susceptible to influence. The learned Magistrate took note of the sentence passed upon her co-defendant Szeto. In his case, the court had adopted a starting point of 3 months’ imprisonment on each charge and reduced that to two months’ for plea but ordered one month on Charge 2 to be served consecutively to Charge 1 making a total of 3 months’ imprisonment. Reflecting that sentence the learned Magistrate adopted the same starting point, which was not discounted as the appellant had been found guilty after trial. As with Szeto, he then made one month on Charge 2 run consecutively to Charge 1.

Grounds of Appeal

17.The original grounds of appeal were in the form of Form 101. I am not in receipt of any Perfected Grounds of Appeal (“PGA”) but now have the Amended Perfected Grounds of Appeal from Mr James Tze dated 12 December 2022, which indicate the Perfected Grounds of Appeal were dated 21 October 2022. On 27 February 2023, the appellant filed and served Re-amended Perfected Grounds of Appeal (the “RAPGA”). The RAPGA are as follows:

Re-Amended Perfected Grounds of Appeal against Conviction

(1)  The Magistrate erred in rejecting the exculpatory part of the appellant’s mixed statement namely exhibit P10 & 10A and exhibit P11 & 11A, by relying on the rejected evidence of DW1; and/or failed to consider and/or failed to sufficiently consider P10 and P11 in accordance with R v Sharp; and failed to consider the verbal answer given by the appellant under caution, which was agreed by the parties in paragraph 15 of the Admitted Facts (P14).

(2)  The Magistrate wrongly used the incorrect test, namely “the reasonable person test” (objective test) instead of the “subjective test” in the evidence evaluation process for the key issue of the trial, namely the knowledge of the appellant of the dangerous drugs in Charge 1.

(3)  The Magistrate erred to use a wrong version of evidence which in contradiction to the testimony of PW1 was also in direct contradiction with paragraph 10 of the Admitted Facts (P14) (that it was the appellant who handed the plastic bag to him) and used incorrect evidence to arrive in his verdict for Charge 2 which exhibited material irregularity in his evidence evaluation process;

(4)  The inference drawn by the Magistrate that the appellant has the knowledge of the dangerous drugs in both charges were not irresistible inferences; and

(5)  Under all the circumstances the convictions were unsafe and unsatisfactory.

Amended Perfected Grounds of Appeal against Sentence

(1)  The starting point of 3 months imprisonment and the final sentence of 3 months imprisonment for each charge as the Magistrate mechanically adopted from the sentence of DW1 which imposed by other magistrate, and in all the circumstances of the case, namely the clear record of the Appellant, her young age, being used and influenced by DW1, the small quantity of the drugs, the least potent drugs involved, her personal background and the remanded period pending for the background report, etc. the 3 months imprisonment for Charge 1 and 2 are manifestly excessive; and

(2)  In all the circumstances the overall sentence of 4 months’ imprisonment for both charges is manifestly excessive.

Analysis

18.There are a number of separate complaints within Ground 1.

(i)  The Magistrate erred in rejecting the mixed statement of the appellant under P10 and 11(the answers to questions in interview respectively for Charge 1 and Charge 2);

(ii)  he should not have relied upon the rejected evidence of DW1(Szeto);

(iii)  he failed to apply the principles of R v Sharp to his consideration of P10 & 11; and

(iv)  he failed to take into account the admissions by the appellant upon arrest and caution, which were admitted under paragraph 15 of P14.

19.As to Ground 2, which also applies to both charges, the Magistrate applied the objective test to the issue of knowledge, which should have been a subjective test.

20.As to Ground 3, which only applies to Charge 2:

(i)  the evidence of PW1 was in conflict with paragraph 10 of  the Admitted Facts. The Admitted Facts take precedence and therefore the evidence of PW1 on this point should not have been accepted; and

(ii)  he therefore relied upon incorrect evidence to reach a verdict upon Charge 2

21.As to Ground 4, he was not entitled to draw the irresistible inference that the appellant had knowledge upon Charge 1 and Charge 2.

22.Mr Tze has assisted the court in synthesising the complaint under Ground 1 by submitting that the learned Magistrate failed to look at the mixed statements as a whole rather than failed to consider them at all and should not have taken any part of the evidence of Szeto into account when doing so. So far as Ground 3 is concerned, he submits that the evidence of PW1 was in fact consistent with paragraph 10 of the Admitted Facts but that the learned Magistrate incorrectly stated that Szeto[24], and not the appellant, had handed over the drugs to PW1 on 10 June, which conflicted with both the Admitted Facts and PW1’s oral evidence[25].

Appeals under s113 of the Magistrates Ordinance, Cap 227

23.In HKSAR v Ip Chin Kei & Others HCMA 301/2011, McWalters J (as he then was) helpfully outlined the procedure to be adopted by this Court. He summarised the relevant legal principles as follows:

(1)  An appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

(2)  Each party bears their respective burdens – the appellant to uphold the appeal and the respondent to uphold the conviction – and the parties, subject to the overriding supervision of the Registrar, or ultimately the appellate judge, will determine the contents of the appeal bundle bearing in mind the burdens they have to discharge.

(3)  The magistrate’s Statement of Findings will form part of the appeal bundle.

(4)  The grounds of appeal will inform the appellate court of those areas where the appellant will seek to persuade the appellate court to depart from the magistrate on findings of fact or law when conducting the rehearing.

(5)  The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6)  Error by the magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7)  The test in determining whether an error by the magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made. And

(8)  Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

24.On a rehearing this court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence beyond reasonable doubt. I can do no better than rely, as McWalters J did, upon Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661 at page 678 B – D:

“ …, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt the appeal must be upheld.”

Discussion

Ground 1

25.The appellant complains that the learned Magistrate wrongly rejected the exculpatory parts of the appellant’s answer to arrest and caution, as well as P10 and P11, which were her answers to questioning upon Charges 1 and 2 respectively. These are rehearsed at paragraphs 6 to 7 above. It is submitted that in doing so, he wrongly took into account the evidence of Szeto, which he had rejected, and did not consider the mixed out of court statements of the appellant as a whole as was required under R v Sharp [1988] 1 WLR 7, (1988) 86 Cr App R 274.

26.The evidence of the appellant’s reply to arrest and caution and what she said in interview were admitted under P14. The Admitted Facts were written out in full within the Statement of Findings. In doing so, the learned Magistrate noted their existence and therefore their content. He was fully aware of the fact that the appellant had said at all times that she did not know what was in the packets and she had not asked. This was why he had considered the legal principles as to “suspicion” and “turning a blind eye”. The issue was not whether the appellant was present, which she admitted and about which there was never an issue, but whether she knew what she was handling, which she did not admit. The appellant did not give evidence in trial as to that, as is her right. Her case was adduced via the Admitted Facts and through the oral evidence of Szeto, which was carefully scrutinised by the Court.

27.It is true to say that in testing the remainder of what had been said by the appellant within P10 & P11, the learned Magistrate alluded to a conflict in the evidence between what had been said by the appellant and what had been said in evidence by Szeto. In so doing, he was not impliedly accepting the veracity of Szeto’s evidence on the point under consideration but addressing the inconsistencies and illogicality of what had been said by two people who were together at the time of this offending. The function of a tribunal of fact is to assess the credibility of any witness before it. That exercise is a complex one. A court may accept some evidence and reject other parts of the evidence; it may adopt the evidence of a witness in its entirety but place varying weight upon its contents or it may reject it as a whole. Where a Court rejects the evidence of a witness that does not necessarily include those parts of the evidence which are uncontested such as presence. That would fly in the face of common sense.

28.The exercise carried out by the learned Magistrate in no way prejudiced the appellant. In so far as knowledge was concerned, the learned Magistrate considered the defence case at its highest and canvassed whether an issue as to suspicion (which is not sufficient) or turning a blind eye (which may be sufficient) had been raised. He dealt with both those issues correctly in accordance with the law. In the end he drew the irresistible inference of knowledge on the part of the appellant.

29.In doing so, the learned Magistrate took into account:

(i)  Szeto and the appellant were lovers from the Admitted Facts[26];

(ii)  the appellant sent the voice messages on 4 June 2020 from PW1’s evidence;

(iii)  the appellant verbally apologised for the delay;

(iv)  the appellant offered to give PW1 a gift on the next occasion;

(v)  money changed hands between PW1 and the appellant;

(vi)  this was a business transaction;

(vii)  the appellant had said that she had not been told what was inside the packet; and

(viii)  the contents of the packet handled by the appellant could clearly be seen.

Ground 2

30.The learned Magistrate did not apply the incorrect test to the issue of knowledge in trafficking in dangerous drugs, which is trite. His use of the word “reasonable”[27] came at the end of a thorough analysis of the evidence and was unlikely to have been intended to indicate that the test as to the appellant’s knowledge was an objective one. It was a simple statement as to what was clearly within the transparent plastic bag [P1]. He did not refer to it again. His assessment as to her knowledge of trafficking in dangerous drugs was far more extensive and his reasoning was provided. There is no other indication that he was applying the incorrect test.

Ground 3

31.As to the conflict of evidence between PW1 and paragraph 10 of the Admitted Facts, a perusal of the transcript actually shows that PW1 stated that the appellant handed over the drugs to him on 10 June and I agree with Mr Daryanani that this was a simple misunderstanding of the evidence by the learned Magistrate given that the second incident appears to have been orchestrated by Szeto throughout. Nothing turns on this point for the appellant as PW1’s evidence is in fact consistent with P14. The learned Magistrate gave her the benefit of the doubt when considering her role on 10 June.

Ground 4

32.As to the actual issue in the case, the drawing of an irresistible inference of knowledge, the learned Magistrate gave his reasons which were necessarily cumulative on the facts of this case[28]. There was other evidence he could have also relied upon as could this Court.

Charge 1

(i)  Being lovers, the appellant and Szeto had an intimate and close relationship for some 2 months in which you would expect a partner to know if Szeto was taking cannabis, possessed cannabis and was trading in cannabis;

(ii)  the account being used was clearly related to dangerous drugs;

(iii)  it also had a female connection in “weedbabe” and “stonergirl”;

(iv)  it was a female who spoke to PW1 on 2, 3 & 4 June in the voice messages. The voice was similar to the voice of the appellant when he met and spoke with her on 4 June;

(v)  the rapidity of the text messages to and fro under the weedbabe account and the timing of the voice message suggests one and the same person was communicating on 2 June. That series of messages included the price of the drugs identical to the payment made by PW1 to the appellant for 4g of herbal cannabis;

(vi)  there was a further voice message from the appellant on 3 June along with immediate text messages;

(vii)  there is not one but 4 voice messages starting at 2:37 pm from the appellant on 4 June, as well as one WhatsApp voice message at 15:43pm from Szeto`s mobile phone. The voice messages from the Instagram account are also at the same point in time as the text messages of which there are several;

(viii)  the appellant apologises for being late before she arrives and offers a cookie next time but ends the text with a “female” emoji;

(ix)  the appellant meets PW1 at the MTR station and hands over the drugs in receipt for payment;

(x)  the appellant offers “a gift” once more, on the next occasion; and

(xi)  the appellant was with Szeto when this meeting occurred.

Charge 2

(i)  PW1 uses the weedbabe account on 9 June but it is by text only. On the basis this is a joint enterprise, it matters not which of the two (Szeto or the appellant) are texting. A meeting is set up for 10 June;

(ii)  references are made to “4/650 as usual”; “let me give away the (not a) cookie to you as well” and “Let’s meet up at our usual place”;

(iii)  there are also texts from the WhatsApp account in similar terms including “I don’t want to keep you so long as what you did on the previous occasion”;

(iv)  there are a number of voice mail messages from the WhatsApp account which are Szeto, between 15:58 and 19:45;

(v)  both the appellant and Szeto meet up with PW1 at the MTR station;

(vi)  it is the appellant who hands over the candy bag containing the drugs and cookie;

(vii)  it is the appellant who receives the $850 for a very expensive bag of what looks like sweets; and

(viii)  the appellant is at best, 2-3 peoples distance away (but likely to be closer) when PW1 asks how to consume the cookie and is told to eat half at first to make him high.

33.After careful consideration this court finds, as did the learned Magistrate, that the evidence of Szeto is inconsistent and contradictory in a number of aspects. In particular, there is the issue that he stated the appellant had asked about the drugs and he had told her they were Chinese Medicine when the appellant maintained that she had not asked and had not known what the packets contained. There are other aspects of his evidence which are also highly improbable and do not need to be repeated here. The safe course is not to give any weight to his evidence where it clearly contradicts the evidence of the appellant and then to consider her evidence as a whole by reference to that of PW1.

Conclusion

34.Upon the appellant’s case and PW1’s un-contradicted and uncontested evidence, I do not accept that the appellant did not know or ask about the drugs she handed over to PW1. Given the degree and nature of her involvement , I do not accept that she did not know or may not have known, what it was she was selling on either occasion. There are more than sufficient proven facts to draw the irresistible inference that the appellant knowingly took part in a joint enterprise to traffic in dangerous drugs on 4 June and 10 June 2020 respectively. Accordingly, the convictions are affirmed and the appeal against conviction is dismissed.

Sentencing

35.The relevant guideline authority in this case[29] for the sentencing of cannabis is AG v Tuen Shui ming & Anor [1995] 2 HKCLR 129, which states that up to 2,000g of cannabis resin attracted a sentence of imprisonment of 16 months. Sentence below that amount is at the discretion of the Court.

36.In HKSAR v Chor lui [2001] 3 HKLRD 95, HCMA 535 of 2001, a sentence of 2 months after plea for 0.24g of herbal cannabis was not manifestly excessive although that sentence took into consideration the previous convictions of the defendant for possession and the fact that he was operating within a discotheque. That latter element militated towards a custodial sentence.

37.The use of Instagram as a means to market dangerous drugs is of especial concern to the courts as it encourages the young and the vulnerable to try illicit drugs when they would otherwise not have the opportunity to do so. This was the approach of Lugar-Mawson J in Chor Lui above where there were serious concerns about the sale of drugs within a discotheque. It is no less pernicious just because the drug in question is in herbal form, for one drug may very well lead to another and to lifelong consequences. However, there is a small distinction to be made between the appellant and Szeto. She was young and of good character at the time of the offending and it has taken some time for this matter to come before the Court. I also note that the reports below suggest she was under the influence of Szeto. I do not criticise the learned Magistrate for taking the approach he did to sentencing given this was a joint enterprise but given the period of time it has taken for this matter to come to court through no fault of her own, I will reduce the appellant’s sentence to one of 3 months’ imprisonment on each charge to run wholly concurrently with one another.

38.This appeal against conviction is dismissed. The appeal against sentence is allowed in so far as the appellant is to serve a period of three months’ imprisonment on each Charge, that period of imprisonment to be served wholly concurrently.

39.I am grateful to both Mr Daryanani and Mr Tze for their assistance. No order as to costs.

Mr Prakash Daryanani, SPP, of Department of Justice, for the respondent

Mr James Tze, instructed by the Director of Legal Aid, for the appellant