HKSAR v. Lee Yuen Ping Maggie

CACC000242/2000

CACC242/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.242 OF 2000

(On Appeal from DCCC No.194 of 2000)

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Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Stock JA in Court

Date of Hearing: 16 November 2000

Date of Judgment: 24 November 2000

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J U D G M E N T

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Stock JA (giving the judgment of the Court) :

1. The applicant pleaded not guilty in the District Court to two charges. The first was trafficking in a dangerous drug; the second possession of apparatus fit and intended for smoking or inhalation of a dangerous drug. On the first charge, the trial judge was not satisfied that the applicant was guilty of trafficking, but convicted her of simple possession of the drugs; and convicted her on the second charge.

2. The facts as they emerge from the Reasons for Verdict are these. On 6 September 1999, a number of police officers kept watch in the corridor outside a flat, Room F at No.202, Ma Tau Wai Road, Hung Hom. After they had been there for about half an hour, a man, named Choi, opened the door from inside that flat, and when the police revealed their identities, he did his best to prevent their entry. But he failed, and the police went in. The flat consists of one room with a bed and a cabinet and some shelving and a toilet as well. Once the police had gained entry, they saw, apart from the man Choi, this applicant. They showed her the search warrant and they asked who rented the room, and the applicant said "This room is rented by me.". There were two bottles on the floor, open to view. One was by the toilet and the other by a wooden stand with shelving. Each bottle had a top into which two holes had been punched, and through each hole a straw was inserted. This is the smoking apparatus to which the second charge refers. Inside each bottle was some liquid and traces of methamphetamine hydrochloride. At the base of the wooden stand and on the floor, there were seen a number of plastic boxes, on one of which, again exposed to view, was a piece of tin foil, also mentioned in the second charge, as well as some transparent plastic bags. The tin foil bore traces of methamphetamine hydrochloride. Right next to the plastic boxes were four plastic drawers, one of top of the other, also on the floor. Each was closed but not locked. Indeed none had any locking device. The police conducted a search of the premises, and inside one of those plastic drawers was found a blue box with its lid on and, after the lid was removed, there was seen inside a transparent plastic bag containing drugs. The applicant and the man Choi were silent when asked to whom these things belonged. On later analysis, this bag contained 10.08 grammes of a crystalline solid containing 9.21 grammes of methamphetamine hydrochloride; commonly know as 'ice'. This forms the subject of the first charge.

3. Then the police asked the applicant where the keys to the room were kept, and she pointed to a door on which the keys were hung; and then she was asked if she had the rental receipts, and she took from a wooden shelf a tenancy agreement. It was an agreement in the name of one Chan Sun Fu. She told the police that he was a friend of hers who no longer lived in the premises. She was arrested and cautioned and said nothing. It emerged in cross-examination that when she was interviewed at the police station, she denied all knowledge of the dangerous drugs found in the premises.

4. The police evidence was obviously accepted by the trial judge. Indeed it does not appear that any of it was challenged.

5. The applicant gave evidence at her trial. She said that she was not in fact the tenant of the premises; that the tenant was Chan, her boyfriend; that she only occasionally stayed overnight at the flat; and that she had lied to the police to protect Chan for fear that he would otherwise be in trouble. There was produced to the court Chan's criminal record, and it revealed that he was the subject of a suspended sentence for possession of dangerous drugs. We pause to note that in the course of the prosecution case, the tenancy agreement was produced and it showed the same man, Chan, named as the tenant of the premises under an agreement dated 17 March 1999 for a term of two years from 22 March 1999. In her testimony, the applicant agreed that she had told the police that Chan was initially the tenant, but that he had moved out and she had moved in. She said that she had never seen any dangerous drugs or drug taking paraphernalia, in the flat. She had only come that day to the flat to collect a computer she had lent to Chan; that the man Choi had come to help her; and that Chan had been at the flat when she arrived but had left shortly before.

6. The judge found the applicant's evidence unbelievable. "It did not appear to me", she said, "that she was telling the truth in the witness box." She found that there was no way that the applicant could not have seen the two bottles if she had been in the premises for an hour, and the judge did not accept that the applicant had admitted to being a tenant in order to protect her boyfriend.

7. She found that the applicant said that she was the tenant and she did not believe that she merely said that to protect the man Chan. The judge relied further on the fact that the applicant was the one who gave the rental agreement to the police. She did not believe the applicant when the applicant asserted that she had not seen the bottles in the flat.

8. In those circumstances, the trial judge concluded that the only reasonable inference to draw in the circumstances was that she was in possession of the drugs in the drawer as well as of the bottles. She noted, however, that there was no paraphernalia such as is normally associated with trafficking and, for that reason, acquitted the applicant of the trafficking charge, which was the first charge, and convicted her of possession instead.

9. The trial judge did not state in terms her finding as to the applicant's status in those premises, but we think it clear enough that she took the applicant to be the de facto tenant. That in itself did not mean that the applicant was thereby to be deemed to be in possession of everything in this flat. It had still to be proved that she knew drugs were in the drawer, and of the presence of the smoking or inhalation apparatus; and also that she exercised some element of control over them. If she was the de facto tenant and if she knew the drugs were present, the latter question - that of control - presents little difficulty. We think, in the circumstances, that the judge was entitled to conclude, as to the bottles, that the applicant was in possession of that apparatus. That apparatus was, as the judge found, open to view.

10. But we have some difficulty in this case with the judge's finding that the applicant was in possession of the drugs in the drawer. The judge has not stated, as she did in the case of the bottles, that the applicant must have known of the presence of the drugs, although perhaps that might be said to be implicit in her finding that the applicant was in possession of them. Yet there are features of this particular case which, in combination, render the question of knowledge of those drugs problematic; and those features are the evidence of others connected with these premises, and the condition and state of the premises themselves.

11. There was no admission by the applicant of knowledge of the presence of drugs. A person, other than the applicant, had opened the door of the flat. He was apparently half dressed, and he resisted entry by the police. That obstructive behaviour was in contrast to the behaviour of the applicant, which was, to some degree, cooperative. The evidence also showed that the flat had, only a few months before, been let to a man Chan, the applicant's boyfriend, a man, at the date of the police visit, subject to a suspended sentence for possession of dangerous drugs. There was no evidence of a new tenancy agreement in the applicant's favour or of any sub-tenancy agreement, and no rental receipts in her name. If Chan had indeed vacated the flat, there is no evidence as to when he had done so. For all one knows from the evidence, he might have left the day before.

12. We have seen photographs of the premises as they were on the day the police entered the flat. The flat was in a complete mess, piled high with boxes and files and papers and awash with shelving and furniture; a flat full of belongings of all sorts. That is relevant to the question of the applicant's knowledge of the drugs in the drawer, for if she was not the sole occupant of these premises, it is less likely that she must have known of the drugs in the drawer than if those drugs had been in, say, an open drawer in a small room which was in pristine condition. Save for a rack of cosmetics which suggested that a female used the flat, there was no evidence about the apparent ownership of the items or clothes in the flat; whether apparently belonging to a man or a woman or both; and in this regard we notice, for example, from the photographs, a rack with magazines and the front one is a racing car magazine; another photograph shows two pairs of track shoes on shelves.

13. The judge has referred to the fact that the applicant had admitted to being the tenant. She has added that the applicant knew her way round the flat because she knew where the rental receipts were. It is on those matters that the judge appears to rely for her conclusion that the applicant must have been in possession of the drugs in the drawer. We do not, however, think that those facts suffice, in the full circumstances we have described, to prove that this applicant knew of the drugs in the drawer. Those facts are not quite enough to show that it was the applicant - rather than one of the men - who had placed the drugs there; or that, even if one of the other men had placed the drugs there, the applicant must have been aware of that fact.

14. Accordingly, we find the conviction on the first charge to be unsafe and unsatisfactory. We give the applicant leave to appeal against conviction, and allow the appeal against conviction in relation to the first charge. That conviction is quashed; and the sentence in relation to that charge is set aside.

15. As for the second charge, the position is different. If, as we assume, the judge has found the applicant to have been the de facto tenant in the premises, and saw these bottles on the floor in different parts of the room, there being clear evidence that she must have seen them; the judge's finding in terms that she did; evidence, uncontraverted, that she was in the flat for at least half an hour before the police entered, it is difficult to escape the conclusion that she must have been in possession, whether solely or jointly with another, of the equipment represented by those bottles. That being so, the appeal against the conviction in relation to the second charge is dismissed.

16. That leaves us with the appeal against sentence. Had the first charge stood, we would have allowed the appeal. The judge had sentenced the applicant to a term of three years' imprisonment, starting from the premise that for the quantity found, a trafficking conviction would have warranted a term of between three to seven years. That approach was, with respect, not appropriate (see Lai Kam Sang, Cr.App.No.578 of 1998). The judge should have started from the sentence normally imposed for simple possession of dangerous drugs, and then made such adjustment as was warranted for the latent risk factor, if such a factor was shown to exist. But no more need be said about that, because the sentence on that charge has been set aside. The sentence of six months' imprisonment on the second charge is in itself not objectionable, save that the judge ought, we believe, to have ordered it to run concurrently to the sentence on the first charge. The appeal against the length of sentence on the second charge is dismissed. We consider in the circumstances that this will lead to her immediate release.

Representation:

Mr Simon Tam, SGC, for DPP, for the Respondent

Mr Paul T.Y. Tse, instructed by Messrs Au, Kong & Tang, for the Applicant