Pauline Lilian Deary and Another v. The Queen

CACC000289/1982

BETWEEN

Coram: McMullin, V.-P., Li & Yang, JJ.A.

Date: 3 September 1982

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JUDGMENT

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Li, J.A.:

1. The applicants were jointly charged with and convicted of possession of dangerous drugs, namely, 1,122.10 grammes of cannabis for the purpose of unlawful trafficking and were each sentenced to 2 years imprisonment. This is the only charge with which this court is concerned. In addition, the 1st applicant was convicted on her own plea upon two charges of simple possession of dangerous drugs, namely, (i) 19.9 grammes of resinous substances containing 0.3 grammes of tetrahydrocannabinol; (ii) 4 cigarettes containing 1.3 grammes of cannabis. She was also similarly convicted of 2 charges of possession of Part I poison, namely, (i) 5 Mogadon pills and (ii)11 Valium pills. She was sentenced on the first two of these four charges to 4 months and 2 months respectively. On the last 2 charges, she was sentenced to one month on each charge.

2. The 2nd applicant was convicted upon another joint charge of possession of dangerous drugs, namely the 19.9 grammes of resinous substance, and upon a separate charge of possession of dangerous drugs, namely, 0.29 grammes of resinous substance containing 0.1 gramme of tetrahydrocannabinol. He was sentenced to 4 months and 2 months respectively.

3. Since all the sentences were ordered to be concurrent with the sentence on the 1st charge (i.e. the charge relating to the 1,122.10 grammes) and the date of conviction was on the 18th of March, nothing turns on any of the comparatively minor charges. In any event, the 1st applicant pleaded guilty to simple possession on all charges and the 2nd applicant, although he pleaded not guilty originally, admitted that he was in possession of all the drugs that was produced in evidence, including the 1,122.10 grammes.

4. The applicants had served all the shorter sentences before this renewal of their applications. With regard to the charge of possession of dangerous drugs for the purpose of unlawful trafficking, both applicants, at the commencement of the trial, admitted possession of the cannabis but denied that they were in possession for the purpose of unlawful trafficking. They gave evidence to rebut the presumption in section 46 of the Dangerous Drugs Ordinance. However, the trial judge held that they failed to do so. Hence the conviction.

5. Both applied for leave to appeal against conviction and sentence. Their applications were refused by the single judge. The 1st applicant originally renewed her application to appeal against sentence only. She applied before us on the 5th of August to renew her application to apply for leave to appeal against conviction out of time as well. Leave was granted to her for the purpose. The 2nd applicant renewed his application both for leave to appeal against conviction as well as against sentence.

6. The Crown's case is that on the 30th of June a party of police officers, acting on information, went with a search warrant to search a flat occupied by the 2 applicants at 6D Bower Road, Hong Kong. In the presence of the applicants, they found a considerable quantity of cannabis and a small amount of a resinous substance containing tetrahydrocannabinol together with a variety of associated paraphernalia and 3 sheets of paper showing handwritten entries of various kinds. No useful purpose will be served by describing the exhibits in detail. Suffice it to say that the resinous substance, the 4 cigarettes, the 5 Mogadon pills and the 11 Valium pills formed the subject matter of the minor charges as aforesaid. The total quantity of cannabis weighed 1,122.1 grammes. It was contained in a variety of polythene bags of various quantities found in the bedrooms of the 1st and the 2nd applicants and it formed the subject matter of the major charge - the joint charge of possession of dangerous drugs for the purpose of unlawful trafficking.

7. The quantity in each bag varied from the smallest packet of 2.2 grammes to the largest packet of 948.6 grammes (Exh. P27A). In addition, there were a set of scales and weights capable of weighing substances up to 50 grammes, a cigarette rolling gadget, Rizla papers for cigarettes and the 3 sheets of paper referred to earlier (Exh. P5F).

8. Applicant convicted possession of dangerous drugs for unlawful trafficking - Applicant admitted possession for own consumption but not trafficking.

Presumption Sect. 46.

Documents seized on premises.

Crown relied on bulk of cannabis and documents as evidence of trafficking.

Defence relied, inter alia, on documents as record of consumption. Trial judge rejected defence explanation that documents were record of consumption without assigning reason.

Held:-

Sentence:

9. Possession of cannabis is an offence in Hong Kong irrespective of the laws in other countries.

10. The appropriate in present case for simple possession should have been 9 months imprisonment.

11. However, taking into consideration of the special features in this case - Sect. 54 had not been complied with in respect of conviction of the other minor charges and that imposition of a custodial sentence would keep applicants long in custody - the sentence is reduced to fines of $2,500 each payable in 1 month. Order under Sect. 38 rescinded.

12. The applicants admitted in the court below that they were in possession of all the exhibits found by the officers in their flat, but denied that the cannabis which they possessed was for the purpose of unlawful trafficking.

13. The defence is that they, the 2 applicants, co-habitude and shared the flat at Bowen Road since 1977. Both had proper employment. They had formed the habit it smoking marijuana, cannabis and hashish some years previously - the 2nd applicant being the heavier consumer.

14. Sometime in June 1981, the 1st applicant learned from a seller of drugs that "a drought was looming on the horizon" and that cannabis would be in short supply. For this reason, they decided to enter into the largest bulk purchase they had ever made, namely, I kilo of cannabis at the price of $17,500. The cannabis was bought on the 29th of June, 1981, I day before the police raid. The 1st applicant considered the price cheap, even though the 1nd applicant considered it only normal for a bulk purchase. At the time of their arrest, their combined monthly income was approximately $23,000. They further explained that the purchase of the kilo of cannabis was for their consumption and not for sale. They estimated that such a large quantity would last them for about 6 months. It was their habit to split up their purchase into small quantities contained in small bags for checking quality and weight, for easy storage and making the drugs readily accessible. The scale was used to weigh out and split up the drugs for that purpose. It was also used for other purposes. The Rizla papers and rolling gadget were used to roll cannabis cigarettes for their own use. The pipe with traces of resinous substance was said to support their explanation that they were consumers rather than traffickers.

15. With regard to a bag marked with the word and figures "Lenny 5 gms at 40.0" (Ekh. P21) and containing cannabis resin, which is not part of the subject Matter of the relevant charge, the 1st applicant said that she recorded the name of her supplier, Lenny, who supplied the 5 gms of resin at $40 par gm. As to another bag if 26 grammes of cannabis marked "to c.h." (or "to ch") and the figure "50" (which was crossed out) (Exh. P28A), the 1st applicant said that it was in her hand-writing and that it probably indicated "that the bag used to contain 50 grammes to be changed up or down, hence the letter 'to c.h.'". Regarding the 3 packets, of 4.7 grammes each and marked with the figure "5" (Exh. P23A), the 1st applicant said that she weighed them out for easy access and storage at 5 grammes per packet. Their contents had reduced to 4.7 grammes probably due to loss of moisture.

16. The 2nd applicant's explanation as to the 948.3 grammes found in I bag (Exh. P27A) was that it was delivered only 10 hours before the police raid. The scale could not weigh anything over 50 grammes, hence there was still over 900 grammes in the bag. Regarding the bag of 5.2 grammes of cannabis (Exh. P2) contained in the envelope marked "Ray", the 2nd applicant said that his friend Raymond sent the 5 grammes of cannabis to him as a Christmas gift. He put it in an envelope marked "Ray'' to remember the giver, but he said he had used some of the contents of this packet to blend with other cannabis for his own consumption from time to time. Finally, there are the 3 sheets of paper (Exh. P5F). As to these the 2nd applicant said that as an accountant and analyst, with an analytical turn of mind, he kept these as a record of his drug consumption for the year 1978/79. The smallest sheet recorded the cost and quantities acquired and the average price per gramme. The medium sheet recorded the data of his intake within groups of days throughout that period. The largest sheet was a summary of the data contained on the medium piece.

17. From the evidence aforesaid, it is obvious that both the Crown and the defence relied for opposite purposes on the same set of exhibits produced before the court. On the one hand, the Croon relied on the sheer bulk of the cannabis found invoking the presumption in section 46 of the Dangerous Drugs Ordinance, so as to shift the burden of proof to the defendants to rebut that presumption. The purpose of the defence evidence was to rebut that presumption on the balance of probability.

18. In the circumstances, the credibility of the defence witnesses must be of prime consideration. Whether a judge accepts or rejects any evidence is a matter within his discretion. A Court of Appeal will be reluctant to interfere with such findings unless the Court finds that the judge has come to a decision to accept or reject evidence on wrong premises or for patently wrong reasons. Where he gives no reasons for the exercise of this discretion, this Court will then take it upon itself the task of examining the record to see whether there is anything in the evidence and the record generally which would warrant interference on the basis that he has exercised his discretion incorrectly.

19. The defence of both applicants was the same in the court below. To that extent, the trial judge was justified in considering the case for or against them together. It was a joint charge and their approach was such that they must stand or fall together. In his reasons for verdict, the learned trial judge listed 7 items as important constituents of the applicants' explanations which he said he could not accept and which clearly weighed greatly in his rejection of this story. His findings in this regard are as follows:

20. The judge accepted that the applicants were cannabis smokers. He noted that the applicants had familiarized themselves with the provisions of Dangerous Drugs Ordinance. He found it improbable that the applicants were intending to use such a large quantity of the drug by themselves.  He inferred that the 3 packets of 4.7 grammes (Exh. P23A) were packed for future sales and that the 26 grammes packet (Exh. P28A) was packed to be delivered to a customer named ''c.h.". He further found that the scale, the cigarette rolling gadget, the Rizla paper, the few dozens of small plastic bags and equipment were all used for dviding and packaging the cannabis for sale and to make cannabis cigarettes for sale. The most important of his findings was that the papers in exhibit P5F were records of sale.

21. In their consolidated ground in support of their application, the applicants set forth no less than 15 points of complaint alleging that the judge had either misdirected himself on the facts or had not considered the defence evidence adequately, thereby making the verdicts unsafe and unsatisfactory. There is no need to consider all these grounds, some of which merely touch on peripheral matters.

22. In finding as a fact that the three sheets of paper (Exh. P5F) were records of sale in the year 1978/79, the judge gave no reason apart from his general disbelief of the defence evidence and because, as he put it, these records were kept in "an illogical and puzzling manner". He ignored the fact that, considered as documents of sale, there nowhere appears any record of the selling price. Again, he does not appear to have considered the fact that despite the thorough search of the flat, no later records of any kind were found therein. Nor were any earlier records found. These are factors telling strongly against the idea that these records were records of drug sales by traffickers.

23. Further, on the medium size sheet of paper was written "overall averages, 141 days, 4.7 months, 435 joints or sticks smoke (sic) at average of 3.1 joints per day using average cost of $55/stick total was $3,162.50 or $7.27 per joint". This can hardly be a record of sale. Whatever its precise significance, it looks far more like a record of consumption.

24. The judge's rejection of the contention that these documents were records of consumption is vital to his disbelief of the applicants' other explanations. Once it is accepted that the documents are probably records of consumption in 1978/79, as we think they are, for the aforesaid reasons, the claim of the applicants, particularly of the 2nd applicant, to have; been regular and heavy drug users become clearly quite reasonable. At such a rate of consumption, there is little doubt that the applicants would be able to consume the whole of the kilo of cannabis in 6 months, which is what they claim.

25. In any event, if the judge found these records puzzling as records of consumption, he should have found them equally puzzling and illogical as records of sale and consequently inoperative in tilting the balance in favour of proof and against rebuttal of the presumption.

26. There was no dispute that the combined income of the applicants were approximately $23,000 per month. They were drug abusers. They had regular incomes and regular jobs. Looked at in that light, it was not too surprising that they could afford to buy in bulk for $17,500. The seller's story could well have been a saleman's puff. The fact that they bought the kilo of cannabis was never denied. When considering the defence, the judge misdirected himself on fact by saying that the applicants used the scale to weigh and split the large quantities of cannabis into small and fixed lots (page 6 of the reasons for verdict). He said (at page 10 of his reasons for verdict): "they took all the trouble of breaking the bulk into fixed small doses and neatly put them into similar sealed packets". Apart from the 3 packets of 4.7 grammes each (Exh. P23A), the evidence was, however, that the various packets found on the premises varied in quantity from 2.2 grammes to 49.8 grammes up to the bulk of 948.3 grammes. Otherwise, there was no question of any fixed lots and certainly not fixed small doses. If the small packets were weighed out carefully for resale, they appeared to have been weighed out in a most peculiar manner and in odd quantities. This is yet another fact pointing to consumption rather than trafficking.

27. As to the 3 packets of equal weight (Exh. P23A), the judge said that the 1st applicant packed them "to follow the customary market practice" when stating the defence case. He therefore drew the inference that they were for resale. But the 1st applicant merely said in court that she did this to suit her own financial situation. This is a further misdirection of fact.

28. The packet marked "to c.h." (or "to ch") and the one marked "Ray" were equally consistent with preparation for sale as with the explanation given by the applicants. In any event, they were measured out in 26 grammes and 5.2 grammes respectively which did not lend support to the theory of sale. If these were for sale, the quantities would have been measured out in round figures. The same argument applies to the 3 packets of 4.7 grammes each.

29. In his reasons for verdict, the judge said (at page 11) that the applicants "had scanned the Dangerous Drugs Ordinance to familiarize themselves with various definitions and the provisions therein". We take it that he assumed that was the reason why the applicants weighed the 3 packets at 4.7 grammes, i.e. to safeguard themselves and possible customers by evading the trafficking presumption in section 46 of the Dangerous Drugs Ordinance. If that were so, there would be no reason for the other packet found and marked "5" on the premises to have been contained slightly more than 5 grammes.

30. The paraphernalia for rolling cannabis cigarettes are rather more consistent with consumption than with sale. Regarded as records of sale, the entries in exhibit P5F would indicate that a daily sale of cannabis cigarettes by the applicants of not more than some 20 a day. Having regard to the applicants' regular jobs and substantial incomes, this would appear to be hardly worth their while. Sale of individual cigarettes, at least in these circumstances, would seem to be a very unlikely procedure.

31. In our opinion, had the trial judge examined exhibit P5F more closely, he must have found that, although the records were kept in a very disorderly manner, they were neither so illogical or puzzling as to be incapable of supporting the 2nd applicant's explanation. Thus viewed, it should have been apparent that the probability favoured consumption rather than sale.

32. If the judge had given adequate consideration to the background and financial resources of the applicants, he must have found that it was not improbable that they could afford to hoard the kilo of cannabis for their own use without having to earn a few quick dollars by selling a few cannabis cigarettes per day.

33. Talking the totality of evidence, we have come to the conclusion that the applicants had substantially tipped the balance of probability in their favour. For the aforesaid reasons, we feel that the conviction of both applicants was unsafe and unsatisfactory. Accordingly, the applicants’ applications for leave to appeal against conviction are granted, their applications are treated as the appeal itself, which is allowed to the extent that the conviction of possession of dangerous drugs for the purpose of unlawful trafficking is quashed and in substitution therefor we record convictions of simple possession of dangerous drugs in view of the evidence given by the applicants in the court below. We will now proceed to hear them on their applications for leave to appeal against sentence in respect of the substituted convictions.

McMullin, V.-P. :

34. We turn now to the question of sentence. Mr. McLane, who represented himself and his partner on the appeal against conviction, has addressed the Court on the level of sentence appropriate to convictions for simple possession of marijuana. We have had our attention drawn to the very few cases on this matter which have already been dealt with by these courts.

35. We note that in the case of Ackermann⁽¹⁾ , a sentence imposed in respect of trafficking was set aside by the Court of Appeal because the conviction for trafficking had been set aside upon technical grounds. In substituting a conviction for simple possession, the sentence of 3 years was reduced to 12 months. The quantity involved there was some 3,000 grammes - something like 3 kilos of marijuana. The circumstances attending the crime were very serious including the fact that there was an obvious attempt to conceal the drug in a container with a false bottom. We think that there is substance in the contention that the circumstances in the present case must be considered as being considerably less grave than the circumstances of that case, regarded as a case of possession. We have regard also to the decision in LI Kwonn-keung⁽²⁾ , a decision of this court in June of this year, in which, in delivering the judgment of the court, Mr. Justice Silke referred to the categories in CHAN Chi-ming⁽³⁾ which set the headline for these courts in respect of what are normally termed the "hard drugs". In the course of that judgment he referred to the fact that sentences in respect of opium attract a lesser sentence than those indicated in the tariff rates in CHAN Chi-ming⁽³⁾ which are principally directed towards heroin and its associated substances. He pointed out that opium offences would attract lesser sentences and that those for offences relating to cannabis should in turn be lower than those imposed in relation to opium.

36. That, we think, states the correct scale of values, although in general terms.

37. We would like, however, to make it clear that nothing which has been said in the judgment delivered already by Mr. Justice Li nor in anything that has been said in the course of this trial should be interpreted as meaning that these courts take a view of the consumption of cannabis (which is taken in some other jurisdictions) which would lead to the conclusion that the offence is of a venial or technical nature. So far as that is concerned, all those who are present in court, I think, are probably aware that the debate on the question of cannabis proceeds apace and that very strong opinions have been expressed on both sides. The courts are not the proper forum to decide that issue. Those who resort to the consumption of cannabis in Hong Kong do so at their own risk. In the present case it is the fact that the penalties under the law were well known to the applicants. Nothing that has been said here should be taken as indicating that the mere consumption of cannabis is to be regarded as other than a criminal offence as the law stands. Moreover the quantum is important even for cannabis held for the purposes of personal consumption. Amounts in the region of a kilogram (as in the present case) will, allowing for the variation in circumstances which must necessarily occur in each individual case, attract prison sentences in the range of six to nine months.

38. Having regard the circumstances of the present case, we are disposed to think that a sentence in that range would also be appropriate. The applicants have been in custody for some five and a half months already and we had it in mind that a sentence of 9 months would for practical purposes probably have left them with a few weeks still to serve. We are of the view that no good purpose would be achieved by further incarceration - albeit that 9 months would have been appropriate.

39. Our attention has been drawn, however, to section 54A of the Dangerous Drugs Ordinance which, in view of what we had proposed to do, raises a certain difficulty. That section would appear to oblige the trial court, in sentencing a defendant under section 8, which is the relevant section in the present case, to seek reports from the Drug Addiction Treatment Centre and the Commissioner of Correctional Services and to adjourn the case for a period not exceeding three weeks so that that should be done. As Mr. Justice Li has pointed out that section would, in the present case, seem to have made it obligatory for the trial judge to call for such reports. That is so because, although the principal offence was that laid in the first charge - possession for the purpose of trafficking, which is not caught by section 54A - charges 2, 3 and 4 were charges of simple possession, under section 8(1)(a), in respect of which the reports should have been called for. If they had been called for, they would have been received already and would not at this stage have afforded any barrier to the order which we wish to make. Strictly speaking it would now be for this court to call for these reports since that was not done in the court below.

40. Because of those peculiar circumstances, and solely for that reason, we feel that the proper course in the present case is to set aside all the sentences imposed in respect of charges 2, 3 and 4. In respect of the substituted conviction on the first charge. We order that fines of $2,500 each will be payable by the defendants in respect of possession of the cannabis laid in the first charge.

41. We give one month for the payment of those fines. If not paid within that time, the defendants will be taken into custody and brought before the court.

42. We have not yet dealt with the question of the order made under section 38 of the Ordinance. In view of the course that has been taken by the court in this case in setting aside the conviction on the first charge and in substituting a conviction for simple possession (which does not attract the provisions of section 38), the order made in the lower court must be rescinded and we so order.

(1)    Criminal Appeal 693 of 1981

(2)    Criminal Appeal 206 of 1982

(3)    [1979] H.K.L.R. 491

Representation:

Both Appellants in person

Miss Crabtree for Respondent/Crown