HKSAR v. Wong Wai Wah

CACC 88/2024, [2025] HKCA 240

On Appeal From [2024] HKDC 687 & 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 88 OF 2024

(ON APPEAL FROM DCCC NO 872 OF 2022)

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REASONS FOR JUDGMENT

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1.The applicant pleaded not guilty to one count of trafficking in dangerous drugs, namely, 0.90 grammes of a solid containing 0.46 grammes of cocaine, and 9.02 grammes of a crystalline solid containing 8.86 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1). He also pleaded guilty to one count of possession of dangerous drugs[1] (Charge 2) and one count of possession of apparatus[2] fit and intended for the inhalation of dangerous drugs (Charge 3), and was duly convicted on his own pleas. As for the dangerous drugs in Charge 1, the applicant offered to plead guilty to simple possession but this was not accepted by the prosecution. Following a trial before HH Judge Stanley Chan (“the judge”), the applicant was convicted of Charge 1 and was sentenced to 6 years and 3 months’ imprisonment for that charge.

2.By way of a Form XI Notice filed on 24 April 2024, the applicant sought leave to appeal against both his conviction and sentence in respect of Charge 1.

3.At the hearing of the application, I granted leave to appeal on Grounds 2, 3 and 4 of the Perfected Grounds of Appeal against Conviction but refused leave to appeal on Ground 1. I said that I would hand down my decision in due course, which I now do.

The prosecution case

4.At around 20:30 hours on 13 April 2022, the applicant was approached by police officers while he was in the driver’s seat of a private car parked outside Pok Tai House in Pok Hong Estate, Shatin. The vehicle did not belong to the applicant. The police searched the applicant and seized two rolls of cannabis[3] in a Marlboro cigarette packet, which was found inside the applicant’s cross-body bag. The applicant’s wallet and a separate amount of cash of $11,570 were also found in his cross-body bag. The applicant was arrested for taking a conveyance without authority and possession of dangerous drugs. Under caution, he said, “For the car, I had some argument with (my) friend. The two rolls of cannabis are for my own consumption”[4].

5.Following his arrest, the police searched the applicant’s residence at Room 1514 of Pok Tai House. The following items were found in and seized from the applicant’s bedroom[5]:

Relevant to Charge 1

(i)  1 re-sealable plastic bag with 0.9 grammes of a solid containing 0.46 grammes of cocaine[6];

(ii)  1 re-sealable plastic bag with 1.08 grammes of a solid containing 1.06 grammes of “Ice”[7];

(iii)  1 re-sealable plastic bag with 7.94 grammes of a solid containing 7.8 grammes of “Ice”[8];

Relevant to Charges 2 and 3

(iv)  3 glass bottles[9], one of which contained 0.09 grammes of “Ice” within 63 millilitres of liquid[10];

(v)  1 glass tube containing 0.09 grammes of “Ice” within 0.14 grammes of a solid[11];

(vi)  2 glass tubes both containing “Ice” within solids totalling 0.09 grammes[12];

(vii)  1 metal pipe containing 0.10 grammes of herbal cannabis[13];

(viii)  1 re-sealable plastic bag containing 2.55 grammes of herbal cannabis[14];

(ix)  1 grinder containing 0.10 grammes of herbal cannabis[15];

Others

(x)  2 re-sealable plastic bags containing powder, which turned out not to be a dangerous drug[16];

(xi)  Tin foils[17], 2 digital scales[18], and 3 re-sealable plastic bags each containing around 20-30 smaller re-sealable plastic bags[19].

6.At around 23:00 hours on 13 April 2022, the applicant was arrested for trafficking in dangerous drugs. Under caution, he responded, “The dangerous drugs are for my own consumption. I did not sell dangerous drugs. Also, it has nothing to do with my wife and grandchild.”[20]

7.On 14 April 2022, the applicant attended a video-recorded interview (“VRI”) and maintained that all of the drugs found were for his own consumption. He admitted that he had been a drug addict for more than a decade, consuming one gramme of “Ice” per day[21]. He also took cannabis and cocaine[22]. The applicant described how he used the apparatus to consume the drugs[23]. He recalled buying cannabis and “Ice” from an Indian or Pakistani national named “ON”. However, he had no way to contact this person but would simply come across him in Chungking Mansions in Tsim Sha Tsui[24]. The applicant said the price for “Ice” was $2,000 for a bag of 7 grammes[25]. The electronic scales were to prevent drug suppliers from cheating him by weight[26]. The re-sealable plastic bags were for dividing the “Ice” in order to prevent an overdose[27]. In addition, the applicant identified 2 re-sealable plastic bags which he said did not contain dangerous drugs (Exhibits P4 and P5)[28].

8.On the glass bottle that contained a quantity of “Ice” in liquid form (Exhibit P12), a mixture of DNA from three different persons was identified, with the applicant being one of the sources[29]. The street value of the “Ice” and cocaine in Charge 1 was between $5,978 and $6,650[30].

The defence

9.The applicant elected not to give evidence or call any defence witness. He relied on his cautioned statements and VRI.

The verdict

10.The judge concluded that the evidence led him to the irresistible and reasonable inference that the applicant possessed the dangerous drugs in relation to Charge 1 for trafficking:

“21. It was submitted that ‘if the defendant’s case or the defendant’s statements in the VRI were true or might have been true, then such benefit of a doubt must be given to him. Even if the defendant’s case was entirely rejected, the prosecution still bears the burden to prove its case beyond a reasonable doubt’…

25. I have considered all the points raised by the defence counsel. I do not accept what was said by the defendant in his cautioned statement and VRI trustworthy.

26. He mention that he bought the ice from the Indian or Pakistani national and yet he could not have any means to contact him. He does not quite remember them (entry 200) but said it was easy to bump into him (entry 202). He remembered he paid $2,000 for the latest purchase as it was bought ‘last week’ (entry 281 and 285). There are 2 small plastic bags containing non-drug stuff. The defendant recognised them right away and said they were baking soda for cooking and medicinal powder respectively. These 2 bags have orange and blue opening respectively.”

He then described the other items found at the applicant’s home[31] and said of the grinder (Exhibit P16):

“27. …The defendant at first mentioned that it was for grinding ‘Ice’ but immediately corrected that and said it was to grind cannabis buds (entry 218 of the transcript of the VRI, P32B). The chemist did find 0.1 gramme of cannabis in herbal form on the grinder.”

Of the mixture of DNA, the judge commented:

“28 …Of course, the DNA findings cannot be used to implicate the defendant that he was trafficking in a dangerous drug but it shows the DNA did not originate from only one individual…”

Finally, the judge said:

“29. A drug user can be a drug trafficker. The defendant left home with cash in the sum of over $10,000. The stack of cash was not found inside the defendant’s wallet but in his cross body bag. The defendant said he had a dispute with his friend and hence he was able to ‘borrow’ the Mercedes-Benz C-Class car from his friend with the licence expiry date of 28 January 2023 (photo 73 of the album). The defendant claimed in the VRI that he bought a packet of 7 grammes for $2,000 about one week before his arrest. And yet, the police seized one plastic bag which contained 7.94 grammes of a solid containing 7.8 grammes of methamphetamine, not to mention there was another smaller bag of 1.08 grammes of a solid with 1.06 grammes of methamphetamine … If what the defendant said about the scales was true, then he got more Ice (that is 7.94 grammes of a solid instead of 7 grammes) that he had bought. There were also a total of 78 small plastic bags which were contained in 3 larger plastic bags.”

11.The judge accordingly convicted the applicant on Charge 1.

Mitigation and sentence

12.The applicant was 54 years old at the time of sentence. It was said during mitigation that the applicant had been educated up to Form 1 level and was working as a renovation worker, earning about $20,000 a month. From 1999 to 2021, he had been convicted of possession of dangerous drugs numerous times. Furthermore, in 2006, the applicant had been sentenced to 4 years and 8 months’ imprisonment for an offence of trafficking in dangerous drugs.

13.Defence counsel invited the judge to find that a significant portion of the drugs under Charge 1 was for his own consumption and to grant the applicant a sentencing discount of 25%[32]. Counsel further argued that a discount should be granted for the applicant’s sensible conduct in substantially agreeing to the prosecution case[33].

14.The judge found no major mitigating factors in the case. After using the 8.86 grammes of “Ice” as the main drug for Charge 1 and applying the relevant guidelines, he arrived at a starting point of 6 years and 3 months’ imprisonment. In respect of the 0.46 grammes of cocaine, the judge enhanced the sentence by 3 months, to 6 years and 6 months’ imprisonment. He considered that “some ‘Ice’ or cocaine” may be for the applicant’s own consumption and accordingly reduced the sentence by 3 months to 6 years and 3 months’ imprisonment. As for the applicant’s conduct in saving time at trial, the judge pointed out that this had stemmed from the applicant’s intended guilty plea to simple possession under Charge 1[34].

The grounds of appeal against conviction

15.Mr Christopher Grounds, for the applicant at this application and at trial, advanced four grounds of appeal against conviction:

(i)  The judge erred in law and appeared to direct himself that the applicant’s statements upon arrest and in the VRI had to be “trustworthy” to be accepted. (Ground 1)

(ii)  The judge erred factually, and in law, in rejecting the applicant’s explanation that the dangerous drugs were for his own consumption. Further, he erred in drawing the only irresistible inference that the applicant possessed the drugs in Charge 1 for trafficking. (Grounds 2 and 4)

(iii)  The judge erred in law by failing to discharge his duty so as to give clear, precise and/or adequate reasons for convicting the applicant of drug trafficking. (Ground 3)

Ground 1 (conviction)

16.The applicant complains that by stating that he did not find the applicant’s account trustworthy, the judge had imposed a higher standard of proof on the applicant and deviated from the Liberato direction, which required the applicant to be acquitted if his account may or might be true, even if it was not believed. Mr Grounds argues that the judge had placed a positive evidential burden on the applicant.

17.Counsel submitted that this argument was supported by HKSAR v Chan Pak Hang[35]. In that case, the Court of Appeal held it was erroneous to reject the defendant’s evidence simply because it was implausible and coincidental. Such approach was in conflict with the established burden and standard of proof in a criminal trial. The Court in Chan Pak Hang stated that the word “plausible” meant “apparently acceptable or trustworthy”, as defined in the New Shorter Oxford English Dictionary. He added that this argument stands even though the judge at paragraph 18 of the Reasons for Verdict did say that the applicant had no duty to prove anything.

Grounds 2 and 4 (conviction)

18.Grounds 2 and 4 criticised the judge’s reasoning, contending that the evidence in this case should have led to an acquittal of the trafficking charge. It was submitted that, since the judge convicted the applicant on almost undisputed circumstantial evidence[36], the Court of Appeal was in an equally good position to evaluate the evidence.

19.That evidence, so it was argued, pointed to a strong case of simple possession. The applicant’s telephone, residence and the private car were all searched by the police, but no direct evidence of drug trafficking was found. On the contrary, the applicant’s statements under caution upon arrest and in his VRI, the items found on him and in his residence, and his long history of drug abuse were all consistent with a case of possession for own consumption. Even the prosecution were prepared to admit that the applicant possessed some drugs purely for his own consumption, at least so far as the drugs in Charge 2 were concerned. Accordingly, there was no sufficient basis to draw the only and irresistible inference of trafficking.

20.Mr Grounds further complained that the judge did not make any specific findings as to which parts of the applicant’s account he rejected. It was, therefore, wrong to reject the applicant’s account in its entirety, since many of his explanations were unimpeachable.

Ground 3 (conviction)

21.As an extension of Ground 2, Ground 3 took issue with the judge’s reasoning, which is said to be inadequate. After summarising the defence submission and concluding that the applicant’s account was to be rejected, the judge merely recited the evidence without clearly setting out what he relied on to convict or explaining how he reached the verdict. This, it was argued, had made it difficult, if not impossible, to understand why the judge had ultimately convicted the applicant.

The respondent’s submission on conviction

22.In respect of Ground 1, Mr Derek Wong, on behalf of the respondent, pointed out that the judge gave himself a Liberato direction at paragraph 21 of his Reasons for Verdict. He submitted that, by using the word “trustworthy”, the judge was merely saying the applicant’s account under caution was not believable and he did not believe it. It did not mean that the judge applied the wrong burden and standard of proof.

23.This case may be distinguished from Chan Pak Hang[37], where the defendant elected to give evidence, which bore a very different weight to assertions in a VRI. Unlike the judge, who clearly stated that he did not believe the applicant’s account, the trial judge in Chan Pak Hang was ambiguous as to what he believed or accepted. Further, there was nothing to suggest that the trial judge in Chan Pak Hang had been mindful of Liberato. Referring to Stock JA’s dissenting judgment in Chan Pak Hang, the respondent submitted that the real question was whether the judge disbelieved the defence and whether he had good reasons for doing so.

24.As for Grounds 2 and 4, the respondent argued that the evidence as a whole was sufficient to rebut a case of simple possession and to convict the applicant of trafficking. In particular, there were three pieces of especially incriminating evidence:

(i)  Cannabis and cash over $10,000 were found in the applicant’s cross-body bag.

(ii)  The DNA mixture found on the glass bottle showed that the applicant had been sharing drugs with others.

(iii)  The sheer number and quantity of inhaling apparatus, electronic scales and re-sealable plastics bags suggested this was not a case of simple possession.

25.Regarding Ground 3, Mr Wong submitted that the judge’s reasoning was sufficient. The judge had listed the circumstantial evidence he relied on to draw the irresistible inference of trafficking. Although the judge did not discuss each piece of evidence in detail, he did cite those which were commonly associated with trafficking cases.

The grounds of appeal against sentence

26.The applicant’s grounds against sentence reiterated those mitigating factors submitted at sentence. First, this was a case where a significant proportion of the drugs were obviously for the applicant’s own consumption. Authority dictated that a 10% to 25% reduction should be given in such circumstances[38]. It was complained that the 3-month reduction given by the judge only amounted to 3.8% discount and was inadequate. By simply regarding some “Ice” and cocaine as possibly for his own consumption, the judge failed to conduct a proper analysis and never made a specific finding as to whether a significant proportion of drugs was for his own consumption.

27.Secondly, the judge erred in not giving any credit for the way the applicant had conducted the trial by agreeing to almost all of the prosecution evidence. But for the judge’s insistence on calling the arresting officer, the trial could have proceeded without any live witnesses at all.

The respondent’s submission on sentence

28.In response to Ground 1 and the complaint of inadequate reduction for the applicant’s own consumption, Mr Wong submitted that the judge clearly rejected the notion that a significant proportion of the drugs were for his own consumption. Furthermore, there was no evidential basis for the judge to reach an alternative finding.

29.As for Ground 2, the respondent contended that the sentence reduction for the way he conducted the trial was a matter wholly within the judge’s discretion: there was no authority for a mandatory discount in sentence. Moreover, it was the duty of counsel to effectively manage the conduct of the trial and the time used. In any event, not much time was saved by the applicant.

Consideration

30.I do not regard Ground 1 of the appeal against conviction as arguable, let alone reasonably arguable. Although there was at one stage a faint suggestion from Mr Grounds that this ground may be a matter of law which does not, therefore, require leave, that cannot, with respect, be correct on a plain reading of the impugned passage in the judge’s Reasons for Verdict. What the judge said was[39]:

“I have considered all the points raised by the defence counsel. I do not accept what was said by the defendant in his cautioned statement and VRI trustworthy”. (Emphasis supplied)

The adjective “trustworthy” was used in relation to what the applicant had said under caution (upon arrest and in interview) and was the judge’s finding in relation to the applicant’s assertions, unsupported as they were by his evidence. As such, the point was derived from the facts and was an assessment of what was produced in evidence as Exhibit P32A and 32B. It cannot be a point of law; nor to my mind is it even a point of mixed law and fact. It is a simple factual finding about a piece of evidence.

31.As for the meaning of the word itself, the Shorter Oxford Dictionary defines the word “trustworthy” as, inter alia, “reliable”. The judge was not saying that the applicant himself was untrustworthy or unreliable because he was a defendant; nor was he saying he had to find that the applicant was trustworthy before he could accept his assertions. He was simply making a finding that what was said by the applicant in his cautioned statement and VRI was unreliable. In the ensuing paragraphs, he went on to explain why.

32.I therefore refused leave on Ground 1. In doing so, I should remind the applicant that he has the right to renew this ground of appeal before the Court of Appeal, but he should nevertheless be reminded of the Court’s power to consider loss of time if it considers that the point should not have been reargued.

33.In respect of Grounds 2, 3 and 4, I was prepared to grant leave on the basis that the grounds are reasonably arguable. Although essentially a factual appeal, it is reasonably arguable that the applicant should have been convicted of simple possession rather than unlawful trafficking.

34.I shall also grant leave to appeal against sentence, although I should say that Ground 2 of the perfected grounds of appeal against sentence is only likely to gain traction if the Court were to agree that the applicant should have been convicted of simple possession rather than trafficking.

Mr Derek Wong SPP of the Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Betty Chan & Co, assigned by the Director of Legal Aid and Ms Tsang Sze Hang, Cecilia, engaged with the permission of the Director of Legal Aid pursuant to the Scheme under the Patrick Yu Memorial Scholarship of the Hong Kong Bar Association, for the Applicant