HKSAR v. Wong Wai Wah

CACC 88/2024, [2026] HKCA 1285

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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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The appellant faced three drug related offences before HH Judge Stanley Chan (“the judge”) in the District Court. He was convicted on his own plea of a charge of possession of dangerous drugs[1] (Charge 2[2]) and one charge of possession of apparatus[3] fit and intended for the inhalation of dangerous drugs (Charge 3[4]). In respect of the principal charge of trafficking in dangerous drugs (Charge 1), 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, the appellant offered a plea to possession of the drugs in question, but the plea was not accepted by the prosecution. On 2 April 2024, following a trial on this charge, the appellant was convicted and subsequently sentenced to 6 years and 3 months’ imprisonment.

2.On 18 February 2025, the appellant was granted leave to appeal against conviction on Grounds 2 to 4 of his perfected grounds of appeal against conviction, and leave to appeal against sentence. On 12 March 2026, upon hearing counsel for both parties, we allowed the appeal against his conviction for trafficking in dangerous drugs on Charge 1 and substituted a conviction for possession of dangerous drugs. We said that we would hand down the reasons for our decision in due course. Accordingly, these are our reasons.

The prosecution case

3.At around 20:30 hours on 13 April 2022, outside Pok Tai House in Pok Hong Estate, Shatin, New Territories, the appellant was approached by police officers while he was sitting in the driver’s seat of a parked private car, which it later transpired did not belong to him. The police conducted a search and seized from the appellant’s cross-body bag a Marlboro cigarette pack containing two rolls of cannabis[5]. The appellant’s wallet and a separate stash of HK$11,570 in cash were also found in the cross-body bag. The appellant 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”[6].

4.Following his arrest, the police searched the appellant’s home in Pok Tai House. The following items were seized from the appellant’s bedroom[7]:

Relevant to Charge 1

(i)  1 re-sealable plastic bag with 0.9 grammes of a solid containing 0.46 grammes of cocaine[8];

(ii)  1 re-sealable plastic bag with 1.08 grammes of a solid containing 1.06 grammes of “Ice”[9];

(iii)  1 re-sealable plastic bag with 7.94 grammes of a solid containing 7.8 grammes of “Ice”[10];

Relevant to Charges 2 and 3

(iv)  3 glass bottles[11], one of which contained 0.09 grammes of “Ice” within 63 millilitres of liquid[12];

(v)  1 glass tube containing 0.09 grammes of “Ice” within 0.14 grammes of a solid[13];

(vi)  2 glass tubes both containing “Ice” within solids totalling 0.09 grammes[14];

(vii)  1 metal pipe containing 0.10 grammes of herbal cannabis[15];

(viii)  1 re-sealable plastic bag containing 2.55 grammes of herbal cannabis[16];

(ix)  1 grinder containing 0.10 grammes of herbal cannabis[17];

Other items

(x)  2 re-sealable plastic bags containing powder, which was not a dangerous drug[18];

(xi)  Tin foils[19], 2 sets of digital scales[20], and 3 re-sealable plastic bags each containing about 20-30 smaller re-sealable plastic bags[21].

5.Subsequent to the search of his home, the appellant was arrested again, this time 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”[22].

6.On 14 April 2022, the appellant attended a video recorded interview (“VRI”) and maintained that all of the drugs found and seized were for his own consumption. He admitted that he had been a drug addict for more than a decade, taking about one gramme of “Ice” per day[23]. He also took cannabis and cocaine[24]. The appellant explained how he used the apparatus to consume the drugs[25]. 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, Kowloon[26]. The appellant said the price he paid for “Ice” was HK$2,000 for a bag of 7 grammes[27]. The electronic scales were to prevent drug suppliers from cheating him as to the weight[28]. The re-sealable plastic bags were for dividing the “Ice” into smaller portions in order to prevent himself from overdosing[29]. In addition, the appellant identified two re-sealable plastic bags which he said contained powder other than dangerous drugs (Exhibits P4 and P5); subsequent examination confirmed that to be the case[30].

7.On the glass bottle which contained some “Ice” in liquid form (Exhibit P12), a mixture of DNA from three different persons was identified, the appellant being one of the sources[31]. The street value of the “Ice” and cocaine in Charge 1 was between HK$5,978 and HK$6,650[32].

The defence case

8.The appellant elected not to give evidence or to call any defence witnesses. He relied for his defence on what he had said in his cautioned statements and VRI.

The verdict

9.The judge concluded that the evidence led him to “the only irresistible and reasonable inference”[33] that the appellant possessed the dangerous drugs in Charge 1 for trafficking. He did not accept the defence case that he possessed the drugs for his own consumption[34]. The principal complaint at this appeal was the judge’s findings and observations at [26] to [30] of his Reasons for Verdict. In particular:

“26. [The appellant] mentioned 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.”

The judge then described the other items found at the appellant’s home[35] and said of the two sets of digital scales (Exhibits P17 and P19) and the grinder (Exhibit P16):

“27. … There were 2 electronic scales and the defendant said the scales were used to weigh the drugs he bought so that he would not be cheated. There was a grinder. 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.”

As to the finding 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.

30.  From all the available evidence and when they are considered in totality, I rule that in relation to Charge 1, the only irresistible and reasonable inference is that the defendant possessed the dangerous drug for the purpose of trafficking. Accordingly, I convict the defendant of Charge 1.”

Mitigation and sentence

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

11.Defence counsel invited the judge to find that a significant proportion of the drugs under Charge 1 was for his own consumption and to grant the appellant a sentencing discount of 25%[36]. Counsel further argued that consideration should be given for the appellant’s sensible conduct of his defence in substantially agreeing to the prosecution case[37].

12.The judge found no significant 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 derived 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. He considered that “some ice or cocaine” may be for the appellant’s own consumption and accordingly reduced the sentence by 3 months to 6 years and 3 months. As for the appellant’s conduct in saving the time of the trial, the judge pointed out that this stemmed from the appellant’s intended guilty plea to simple possession under Charge 1[38]; accordingly, no reduction was given for such factor.

13.In respect of Charges 2 and 3, the judge gave a full one-third discount and passed a sentence of 2 months’ imprisonment and 8 weeks’ imprisonment respectively. He ordered the sentences on all charges to run concurrently with each other, resulting in the appellant’s overall jail term being 6 years and 3 months’ imprisonment.

The grounds of appeal against conviction

14.Grounds 2 to 4 concern the judge’s analysis (or, it is suggested, lack of analysis) of the prosecution evidence and the cautioned statements (including the appellant’s account in his VRI). The complaint is that the judge erred in rejecting the defence case of simple possession (Ground 2) and, even if Ground 2 failed, in concluding that trafficking was the only and irresistible inference to be drawn (Ground 4). In any event, the judge failed to provide sufficient reasons for convicting the appellant of trafficking (Ground 3). Mr Grounds, who also appeared for the appellant at trial, has submitted that this Court is in as good a position to evaluate the evidence and the inferences which flowed from that evidence as the judge was, since the evidence was not in dispute, save as to whether the unseized wallet was found inside the appellant’s cross-body bag[39].

15.As for Grounds 2 and 4, the appellant submitted that the following pieces of evidence, whether taken individually or collectively, should not have led the judge to reject the defence case or to convict him (if in fact the evidence did, which, it is submitted, was not entirely clear on the judge’s findings), or they militated in favour of a case of simple possession of dangerous drugs:

(i)  The quantity of drugs: the larger packet of “Ice” (7.8 grammes)[40] was at most about two weeks’ supply[41], which the appellant could well afford[42]; and the two smaller packets of cocaine (0.46 grammes) and “Ice” (1.06 grammes)[43] were mere leftovers[44]. This was consistent with the appellant’s assertions under caution that he was a drug addict and the drugs were for his own consumption[45]. Although the judge noted that, for the larger packet of “Ice” (Exhibit P25), the appellant had received more “Ice” than he claimed (7.94 grammes of a solid instead of 7 grammes), it was conceivable that the seller could have inadvertently given him a slight surplus[46];

(ii)  The seized apparatus: the inhaling apparatus (such as the glass tubes), silver foils, lighter and the grinder as well as the drug residues found thereon, supported a case of possession of dangerous drugs for the appellant’s own consumption[47]. As noted by the judge, the appellant immediately corrected his statement about the purpose of the grinder. This was obviously a genuine slip of the tongue and the corrected statement was in line with the residue of cannabis found in the grinder[48];

(iii)  The two sets of electronic scales: the appellant’s explanation that he had used them to prevent being cheated by weight was not incredible[49];

(iv)  The timing of the appellant’s explanation for the 78 empty plastic bags: before the appellant was shown the 78 empty re-sealable plastic bags during the VRI, he had already stated his practice of dividing the dangerous drugs into smaller portions in order to prevent overdosing himself. The subsequent explanation in respect of the empty plastics bags was not inherently deceitful but logical and believable. Furthermore, such re-sealable bags could not be purchased individually[50];

(v)  The lack of other evidence on trafficking: the police did not find anything in the appellant’s telephone or notebooks related to drug transactions. No quantities of well-packed “Ice” of equal and measured quantities were seized. No drugs were found in the private vehicle when the appellant was approached by the police[51];

(vi)  No means to contact the drug seller: the appellant’s explanation that he could only meet the drug seller named ON by chance was not unbelievable. Mr Grounds pointed out that in HKSAR v Ho Ka Kei[52], where the Court of Appeal substituted a conviction for trafficking with one of simple possession, the appellant had also stated that he could only come by chance across the drug seller, for whom he had no telephone contact[53];

(vii)  The cash secured in the cross-body bag: the seized cash of HK$11,570 was within the means of the appellant as a renovation worker. The prosecution had produced no evidence to suggest that the appellant had a bank account or that the cash was drug related[54];

(viii)  Other evidence that was neither here nor there: the mixture of DNA found on a glass bottle (Exhibit P12) was not indicative of trafficking, which was acknowledged by the judge[55]. Neither was the valuation of the seized drugs relied upon by the judge to infer trafficking. Moreover, the judge in his reasoning merely noted (i) the alleged origin of the private vehicle (being “borrowed”) and (ii) that during the taking of the VRI, the appellant was able instantly to recognise the two plastic bags containing the “non-drug stuff”[56]. However, no incriminating inferences could be drawn from these two factors, on which the judge commented no further[57].

16.In support of his argument[58], the appellant referred to the decision of the Court of Final Appeal in Chan Chuen Ho v HKSAR[59]. In that case, having found a clear misdirection, the Court ruled against applying the proviso and quashed the appellant’s conviction for trafficking. The appellant there had been intercepted by the police whilst carrying 197.17 grammes of a mixture containing 37.28 grammes of heroin hydrochloride on the street after leaving his rented premises in the early hours of the morning. His explanation under caution that he was on his way home to Shatin was later contradicted by his own evidence at trial. He could not explain why he had not left the dangerous drug at home after purchasing it for his own consumption. There was no evidence that he was a drug user. Nevertheless, the Court considered that, while the evidence against that appellant was strong, there remained the possibility of simple possession of the drugs in question. The quantity of 37.28 grammes of heroin contained in a mixture of 197.17 grammes was said to have been insufficient to be indicative of trafficking; and whether the defendant was a drug user was said to be a neutral factor[60].

17.In relation to Ground 3, the appellant argued that the judge has erred in law for failing to provide adequate reasons for the trafficking conviction. The judge did not identify what evidence he relied on to convict, or distinguish between the evidence in favour of the prosecution and the defence, rendering it very difficult, if not impossible, for the appellate court to understand his reasoning process[61].

18.What the judge did was to recite the evidence and state his conclusions, rather than evaluate the evidence[62]. The judge’s reasoning at [26] to [30] of the Reasons for Verdict were no more than an exercise of shifting from the appellant’s account to the prosecution evidence without analysing independently whether the prosecution case could stand alone, or why the appellant should be deemed “untrustworthy”. Accordingly, the requirement for adequate reasoning as explained in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority[63] had not been met[64].

The respondent’s submission on appeal against conviction

19.Mr Wong, for the respondent, submitted that this was a simple and straightforward case where the judge, having rejected the appellant’s exculpatory account of trafficking, was entitled to convict on the basis of sufficient circumstantial evidence. He argued that it was impossible for the appellant, a long-time drug addict, who needed to consume “Ice” on a daily basis, to secure his drug supply by simply trying his luck and chancing upon a drug dealer called ON, without any other means of contacting him[65]. The fact that no drug related evidence was found on the appellant’s telephones could not assist his case: the appellant might well have concealed the contact details of the drug dealer in a way the police could not readily check[66]. Mr Wong further suggested that there were other implausible claims made by the appellant, such as the need for two sets of scales to ensure he was not cheated[67]; and his use of multiple small plastic bags to prevent an overdose when one set of scales would achieve his purpose[68]. Since the appellant’s assertions in his VRI had not been tested in cross-examination, the judge was entitled to place little weight to the exculpatory parts of his account[69].

20.Once the appellant’s exculpatory account was rejected, the respondent submitted that the remaining evidence was enough to rebut a case of simple possession and lead to an irresistible inference of trafficking. In particular[70]:

(i)  Cannabis and cash of over HK$10,000 were found in the appellant’s cross-body bag;

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

(iii)  The sheer number and quantity of inhaling apparatus, electronic scales and re-sealable plastics bags, the usage of which in preventing overdoses was somewhat unnecessary given the availability of the scales, suggested this was not just simple possession;

(iv)  The discrepancy of 0.94 grammes between what was in Exhibit P25 (7.94 grammes of a solid containing 7.8 grammes of “Ice”) and the amount of “Ice” claimed to have been bought by the appellant (7 grammes) for HK$2,000 was unrealistic and rather generous on the part of the drug seller;

(v)  The fact that the appellant had been a drug addict was only a neutral factor.

21.In respect of Ground 3, Mr Wong submitted that given it was such a straightforward case, the judge’s reasoning was sufficient. The judge had listed the circumstantial evidence he relied upon to draw the irresistible inference of trafficking. Although the judge did not discuss each piece of evidence in detail, he did cite that which was commonly associated with trafficking cases[71]. Even if this Court were to find against the respondent on this ground, the proviso under section 83(1) of the Criminal Procedure Ordinance, Cap 221 could properly be applied. Citing Lam Kam Ming and another v The Queen[72], where the Court of Appeal had applied the proviso, notwithstanding that the trial judge did not sufficiently, or with sufficient accuracy, formulate his reasons, Mr Wong contended that there was likewise in this case, “no chance fairly open to the appellants of being acquitted on the evidence and the errors of the learned judge have not deprived the appellants of any such chance”[73].  

Discussion

22.We must always be cautious in approaching appeals of this nature, because, unlike the trial judge, this Court has not had the advantage of hearing and seeing the witnesses give evidence at a contested trial. It is therefore at a distinct disadvantage when assessing the findings of a judge who has had that opportunity, and whose role and function is to determine what evidence he accepts and what evidence he does not in arriving at his verdict. An appellate court will, of course, be in a different position when concerned with a sentence appeal from an uncontested guilty plea, since the facts of the case, as reflected in the Summary of Facts, will have been agreed and are a matter of record.

23.On the other hand, in this particular case, the essential evidence on which the judge relied was not in dispute and this Court is in substantially the same position as the trial judge in assessing objectively what the evidence was and in drawing appropriate inferences from that evidence. That said, it must be firmly remembered that this is not a retrial and the Court would still be loath to upset a trial judge’s conclusion unless his findings of fact were contrary to the evidence or plainly wrong.

24.Our first observation, in approaching our task, is that the quantities and value of the dangerous drugs in this case were not so great as to lead to the irresistible inference that the appellant was trafficking rather than in possession of them for his own consumption. The quantities themselves were equivocal and relied on the surrounding circumstances to give them an interpretation one way or the other. Those circumstances, however, pointed both ways. On the one hand, there were 78 small re-sealable plastic bags in three larger plastic bags, as well as two sets of scales, which suggested the possibility of the possessor weighing, packaging and redistributing dangerous drugs. On the other, the presence of three glass bottles and three glass tubes, each with traces of “Ice” were obviously supportive of the appellant’s claim that he was himself someone who consumed “Ice”. Furthermore, the metal pipe and grinder containing traces of herbal cannabis, as well as the two cigarettes containing cannabis found on his person, which the prosecution accepted were for his own consumption (since they formed part of Charge 2), were strongly suggestive of someone who was a consumer of various dangerous drugs. None of the physical evidence could be said to point irresistibly in only one direction.

25.The appellant gave an immediate response upon arrest that the cannabis was for his own consumption and later asserted that all the drugs found at his home were for his exclusive use. It is in respect of the appellant’s assertions under caution that we should make our second observation. The judge did not accept what had been said by the appellant under caution and his approach appears to have been to take issue with what he said to the police. Indeed, his assessment was that the appellant’s account was not “trustworthy” and he proceeded to find contrary to each of the appellant’s assertions. However, we have difficulty, with respect, in accepting several aspects of the judge’s reasoning if they purported to lead to the sure conclusion that the appellant was trafficking as distinct from being in simple possession of the drugs in question.

26.Yet, the one piece of evidence which seemed to us to suggest that the appellant may have been sharing drugs with two other individuals whose DNA was found on two glass bottles, and thereby his involvement in social trafficking, did not appeal to the judge, who reasoned, “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…”[74]. As for other matters on which the judge relied, we did not find them very persuasive; certainly not to the standard of yielding an irresistible inference that the appellant was trafficking in the dangerous drugs in question rather than possessing them for his own use. Moreover, whilst what the appellant told the police was certainly material to be analysed by the judge, the fact that his assertions were not accepted did not mean that the only reasonable inference was that he was trafficking in the drugs concerned. The onus was on the prosecution to establish the necessary inference, not for the defence to establish an alternative inference.

27.At the end of the day, we were persuaded that the evidence was not sufficient to yield of only one reasonable inference of trafficking. Accordingly, we allowed the appeal against conviction and substituted for the offence of trafficking a conviction for simple possession of dangerous drugs under section 8 of the Dangerous Drugs Ordinance. The appellant had served more than 2 years and 2 months’ actual imprisonment by the time we allowed the appeal on 12 March 2026. There was simply no point in calling for a DATC report given the passage of time since his conviction and sentence, during which it must be reasonably assumed that he has abstained from all dangerous drugs. In the circumstances, we considered that the most practical sentence in the circumstances was a fine of HK$5,000, which we ordered should be paid within 7 days of his immediate release.

28.Mr Grounds made two further applications. The first was that the confiscation order should be set aside. Mr Wong did not oppose the application, which we granted. The second was an application for the costs of the trial, which Mr Wong did oppose. We considered that it was not appropriate to make an order for costs in favour of the appellant given the suspicious circumstances in which he was found to be in possession of multiple dangerous drugs. The prosecution were entitled to seek a conviction for trafficking.

29.The appeal was accordingly allowed to the extent indicated.

Mr Derek Wong SADPP (Ag), of the Department of Justice, for the Respondent

Mr Christopher Grounds and Mr Marco Poon (on a pro-bono basis), instructed by Betty Chan & Co, assigned by the Director of Legal Aid, for the Appellant