HKSAR v. Wong Wai Wah

CACC 88/2024

[2025] HKCA 540

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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D E C I S I O N

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1.This is an application by the applicant for bail pending his appeal against conviction and sentence.

2.The applicant faced three charges of drug related offences. He was convicted on his own plea of one charge of possession of dangerous drugs[1] (Charge 2) and one charge of possession of apparatus fit and intended for the inhalation of dangerous drugs[2] (Charge 3). He offered to plead guilty to simple possession in respect of one charge of trafficking in dangerous drugs, namely, 0.90 gramme of a solid containing 0.46 gramme of cocaine and 9.02 grammes of a crystalline solid containing 8.86 grammes of methamphetamine hydrochloride (commonly known as Ice) (Charge 1), but the prosecution rejected this. On 2 April 2024, following a trial before District Court Judge Stanley Chan (the judge), the applicant was convicted of Charge 1. He was sentenced to concurrent terms of imprisonment of 6 years and 3 months on Charge 1, and 2 months each on Charges 2 and 3.

3.The applicant filed a notice of application for leave to appeal against conviction and sentence (Form XI) in respect of Charge 1 only on 24 April 2024. Mr Christopher Grounds, for the applicant, filed the perfected grounds of appeal against conviction and sentence on 19 August and 2 September 2024. At the leave hearing on 18 February 2025, the Single Judge granted the applicant leave to appeal against his conviction on Grounds 2 to 4[3], and sentence on Grounds 1 and 2[4].

4.In respect of his appeal against conviction, the applicant complains that the judge erred in rejecting his explanation that the drugs were for his own consumption and drawing the only irresistible inference that he possessed the drugs for trafficking (Grounds 2 and 4); and failing to give sufficient reasons for the conviction (Ground 3).

5.As for his appeal against sentence, the applicant complains that the reduction of 3 months given by the judge for self-consumption was inadequate (Ground 1); and the judge erred in not giving any credit for his agreement with most of the prosecution case (Ground 2).[5]

6.On 15 May 2025, the applicant filed two affirmations in support of his bail application.

The bail application

7.Bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”)[6]. In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[7] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[8]

8.Mr. Grounds submits this application on both merits and time basis. He argues there is a prima facie likelihood of success in the conviction appeal that there was insufficient evidential basis to rebut a case of simple possession and uphold a trafficking conviction. He further contends that, should the trafficking conviction be upheld, the applicant is entitled to a sentencing discount of 10% to 25% for self-consumption and an additional discount for agreeing with the prosecution case. He points out that the applicant has been in custody since his conviction on 2 April 2024, and his earliest release date is 23 May 2027.[9] By the time the appeal is to be heard, which has yet to be fixed, the applicant will have served a substantial part of his sentence, taking into account the one third remission for good conduct. Mr Grounds refers to the decision in HKSAR v Kulemesin Yuriy[10], submitting that bail has been granted on the time served basis, even where only half of the sentence would have been served by the appeal hearing.

The applicant’s criminal record

9.Amongst his thirty appearances before the courts, the applicant had 56 previous convictions, including seven for possession of dangerous drugs between 1989 and 2021, and one for trafficking in dangerous drugs in June 2006, for which he was sentenced in the High Court to 4 years and 8 months’ imprisonment.[11]

10.The applicant failed to answer bail on two previous occasions following his convictions for a drug possession offence in 2005 and driving related offences in 2012.[12] The respondent notes that the second occasion in which the applicant breached bail, spanned a period of about 8 months from 26 January 2012 to 31 August 2012. Given these previous absconding records and the long sentence in this case, the respondent submits that there is a substantial risk that the applicant would fail to surrender to custody: HKSAR v Lau Man Kin.[13]

11.The applicant stated in his affirmation that he had a car accident in 2015 and was hospitalised for two months, after which he suffered memory loss that has impaired his ability to recall those two occasions.[14]

The brief facts

12.It was not disputed that the applicant was intercepted by the police when he was in a private vehicle[15], parked near his residence on 13 April 2022. The police searched the applicant and found in his possession two rolls of cannabis in a cigarette packet and cash of $11,570 inside his cross-body bag.[16] He stated under caution that the two cannabis rolls were for his own consumption[17]. The police searched his residence, where they found more drugs, including Ice and cocaine[18], which formed the basis of Charge 1. They also found inhaling apparatus[19], which formed the basis of Charges 2 and 3, and other items[20]. He stated under caution that the drugs were for his own consumption and did not sell them.[21]

13.In a subsequent video recorded interview[22], the applicant maintained his account that all of the drugs found were for his own consumption. He said he had been a drug addict for more than a decade, consuming one gramme of Ice per day[23]. He also took cannabis and cocaine.[24] He described how he used the apparatus to consume the drugs[25]. He recalled buying the cannabis and Ice from an Indian or Pakistani national called “ON”, but had no way of contacting him apart from meeting him in Chungking Mansions in Tsim Sha Tsui[26]. He said he bought one packet of 7 grammes of Ice at a cost of $2,000, and it was divided into portions sufficient for his consumption for half a month.[27] He explained that the electronic scales were used for preventing drug suppliers from cheating him by weight[28]. The quantity of unused resealable plastic bags was for dividing the Ice to prevent an overdose[29]. He said two resealable plastic bags contained “baking soda” for cooking.[30]

14.A DNA report revealed a mixture of DNA identified from three individuals, including the applicant, on a glass bottle containing a quantity of Ice in liquid form.[31] The prosecution submitted that the estimated value of the Ice and cocaine seized in Charge 1 was $5,978 in total.[32]

15.The applicant elected not to give evidence or call any witnesses. He relied on his out-of-court cautioned statements.

The issue at trial

16.The sole issue at trial was whether the applicant had the drugs for the purpose of trafficking, as the prosecution alleged, or whether he had them for the purpose of his own consumption, as he claimed.

The issue of self-consumption

17.As regards the issue of self-consumption, the applicant stated in his affirmation that his claim in his interview about consuming “one gramme of Ice every day” was made in error. He clarified that 7 grammes of Ice purchased in one packet was sufficient for him to take “for half a month”, indicating a daily consumption of about half a gramme instead.[33]

18.Where it is shown that a “significant proportion” of the drugs are for the defendant’s own consumption, a sentencing court should adjust the sentence to reflect the fact that not all the drugs were intended for trafficking, with an appropriate discount falling in the range of 10% to 25%. This will depend upon the particular facts and circumstances of the case, but critical factors will include the quantity of drugs claimed to be for self-consumption, the total quantity of drugs involved, and the circumstances in which the offence took place.[34] A sentencing court will also bear in mind that possession of the dangerous drugs claimed to be for self-consumption carries a term of imprisonment, which may require enhancement if there is a latent risk that some of the drugs are accessible to or by others: HKSAR v Choi Chun Wo[35]. It also needs to be appreciated that an appellate court will not interfere with a discount to a sentence given by a judge on account of self-consumption unless he has erred in principle: HKSAR v Chow Chun Sang[36].

The drug valuation

19.The applicant also took issue with the drug valuation as identified in the leave judgment.[37] Mr Grounds argues that it does not indicate trafficking and was not relied upon by the judge for the conviction on Charge 1. He reiterates that the applicant’s defence that the value of the Ice seized was $2,000 for 7.80 grammes. At trial, Mr Grounds challenged the expert evidence on the drug valuations, but the judge accepted this evidence and found that the street value was $5,160 for Ice and $818 (powder) or $1,490 (crack) for cocaine.[38]

The merits ground

20.Mr Grounds refers to the fact that the Single Judge found that Grounds 2 to 4 are reasonably arguable for an appeal against the applicant’s conviction. However, he very properly acknowledges that this does not automatically qualify the appeal as prima facie likely to succeed. That said, a reasonably arguable ground of appeal implicitly has a reasonable prospect of success. He nevertheless argues that with Ground 4, there is a prima facie likelihood of success because there was an insufficient evidential foundation to draw the irresistible inference that the applicant was trafficking in the drugs in question. He submits that on the merits ground, the applicant should be granted bail.

21.I am persuaded by the arguments advanced by Mr Grounds that the merits ground is satisfied.

The time ground

22.Mr Grounds also refers to the time already served by the applicant, and argues that on the time ground, the applicant also qualifies for the grant of bail. I agree. On the basis that the applicant has a reasonable prospect of success in overturning his conviction based on the reasonably arguable grounds of appeal for which leave has been granted, this would result in a substantial reduction in sentence, which he would have served by the time his appeal is heard.

The grant of bail pending appeal 

23.I accept that there is no risk of the applicant absconding, but the same cannot be said for the likelihood of him meeting his bail conditions or committing further offences whilst on bail. The applicant has explained the circumstances of his previous breaches of bail due to health issues and undergoing periods of hospitalisation. As already pointed out, he has an appalling criminal record for drug and driving offences. There is a real risk of him reoffending whilst on bail.

24.Mr Grounds readily acknowledges that the applicant is a drug addict with a serious drug addiction problem. He points out that he has been off drugs during the time he has been in custody, and his state of health has reached a stage where any further drug abuse could have serious deleterious consequences to his well-being. Mr Grounds makes the point that sooner or later, the applicant will be released from custody and if he has met the requirements for bail pending appeal, he should be granted bail with appropriate conditions to address or deal with any relevant considerations or concerns, when that is possible.

25.I have decided to grant the applicant bail pending appeal with appropriate conditions to address the concern of his possible reoffending.

Mr Joe Hui, SPP, of Department of Justice, for the respondent

Mr Christopher Grounds, instructed by Betty Chan & Co, assigned by Director of Legal Aid, for the applicant