HKSAR v. Tse Tak Ming

CACC000335/1999

CACC 335/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 335 OF 1999

(ON APPEAL FROM DCCC 353 OF 1999)

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Coram: Hon. Stuart-Moore, V.-P., Wong, J.A. & Woo, J.

Date of Hearing: 11 November 1999

Date of Judgment: 11 November 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 4 June 1999, the Applicant was convicted, following a trial before Judge Toh in the District Court, of trafficking in a mixture which contained 31.36 grammes of heroin hydrochloride. He was sentenced to 5 1/2 years' imprisonment. The Applicant now seeks leave to appeal against his conviction.

2. The facts can be briefly stated. The Applicant was seen leaving his home in North Point carrying a bag. He was stopped by police and his bag was searched revealing the presence of a number of used syringes which were later found to contain traces of heroin hydrochloride. He was taken back to his address and, in Room A of his two-bedroom flat, the drugs relating to the charge were found together with weighing scales, a blender and a quantity of caffeine. The Applicant immediately admitted possession of the heroin and stated that it had nothing to do with his wife and daughter who also resided at the address. In fact, in a written interview, the Applicant was asked where he had acquired the drugs and he replied that they had been given to him by a friend of his called "Ah Wah" who he had seen in the street. The Applicant went on to say:

"A. He asked if I wanted them. If yes, he would fetch them to me. Regarding Ah Wah I don't know where he lives and I can't find him.

Q. How did you consume the dangerous drugs found at your home?

A. Normally, I used syringes to inject the dangerous drugs into my legs.

Q. What do you mean by mentioning above in having nothing to do with your wife and daughter?

A. Ah sir, my wife and daughter didn't know there was white powder at home nor did I let them know. Each time, I closed the door of Room A for consuming white powder.

Q. Who sleeps in the room at your home where white powder has been found?

A. I sleep there by myself.

Q. Who owns Room A, 7/F, Han Palace Building, 441-477 King's Road and who lives at the above address?

A. I am the property owner. My wife, my daughter and I always live there. No other people live there."

3. In the hearing at the District Court, this evidence was admitted following a voir dire on the issue of admissibility concerning the written and earlier oral answers allegedly provided by the Applicant to police.

4. The Applicant's defence at trial was that the drugs belonged to someone called Wong Hok-wai. An envelope containing a re-entry permit bearing that name was found in the same drawer as the scales. The Applicant stated in evidence that Wong Hok-wai was his employee at the newspaper stall where he was working as a vendor. The Applicant said that Wong Hok-wai occupied Room A, that the drugs belonged to him and that the admissions he had made, both orally and in writing, had been made up by PW1 who was a probationary police constable.

5. The judge accepted that Wong Hok-wai did use Room A but she also found that the Applicant had equal access to that room. There were in fact no locks on the door or the drawers where some of the important items in this case were found. The room door was open at the time of the police search. Some of the drugs in the room were found on a shelf in a man's handbag. These drugs were in a mixture weighing 3.06 grammes and were packed inside three resealable plastic bags. In the same bag were five resealable plastic bags containing traces of heroin hydrochloride. Additionally, there was a plastic bag containing 14.9 grammes of caffeine, which is a well-known cutting agent for drugs of this kind. There was a blender on top of a writing desk and the scales were found in one of the drawers of that desk. In different drawers, there were three phials containing white powder in a mixture which weighed 11.23 grammes containing heroin hydrochloride. Two paper rolls contained other small quantities of heroin hydrochloride and three plastic drinking straws bore traces of heroin hydrochloride. In addition, in the same location there were eight empty resealable plastic bags. In a third drawer of the desk, there were 76.7 grammes of caffeine. In the fourth drawer, police found a mixture weighing 27.36 grammes containing the bulk of the heroin hydrochloride in the charge. Photographs were taken of the property before the items were seized. The retail value of the drugs was $17,969 approximately.

6. In the light of all this evidence, the judge drew what she said was an "irresistible inference" that the drugs were for trafficking, bearing in mind the circumstances in which they had been found. The Applicant did not strike the judge as an honest or forthright witness, and she concluded that the drugs were jointly under the control of the Applicant and Wong Hok-wai for the purposes of trafficking. As a result, the judge convicted the Applicant of the charge as it stood.

7. Mr. Grounds, on behalf of the Applicant, has put forward two propositions in support of his contention that the judge erred in convicting the Applicant of trafficking by having failed to consider the possible alternative defence open to the Applicant that these drugs were for personal consumption. This was an alternative because the defence advanced on the Applicant's behalf at trial by Mr. Cheng Huan, S.C., was that the Applicant had no personal knowledge of the drugs at all.

8. Mr. Grounds firstly referred this court to many of the facts which were more or less agreed at trial, which he submitted supported his general argument. In taking his written argument briefly in this court, he adopted what was contained in it, and he reminded the court that the drugs were found inside the Applicant's flat as opposed to being carried in the street; that when he was first stopped the Applicant was carrying used syringes; that when these were discovered, the police arrested him for possessing instruments fit and intended for injecting dangerous drugs; that the Applicant had allegedly admitted using the syringes to inject himself with dangerous drugs; that there was no evidence that the police had examined the Applicant's legs in a case which the judge said in her findings suffered from a lack of investigation; that there was no large stock of unused resealable bags; that the quantity of dangerous drugs was not so large that they were necessarily being kept for the purposes of trafficking; and that if Wong Hok-wai was in joint possession of the drugs as the judge had found, then that would halve the retail value of the drugs for each user of them. Mr. Grounds also suggested that the scales could be used by a consumer to check that his supplier had not cheated him; that the blender (which bore no traces of heroin) could have been used by a consumer to dilute heroin to make it go further; and that the presence of some empty resealable bags was not inconsistent with a consumer who might wish to take drugs away from his home in order to consume them elsewhere.

9. Mr. Grounds secondly submitted that the judge may have directed herself, because the Applicant had denied altogether possession of the drugs at trial, that it was unnecessary to consider the alternative of simple possession.

10. We cannot see the force of that proposition. The Applicant at trial was represented by very experienced counsel and the confession by the Applicant to possession of the drugs was accepted by the judge. The judge was perfectly entitled in our view, taking into account all of the evidence before her, to conclude that this was not simply a case of possession for personal consumption by the Applicant, but rather a case where the circumstances positively established trafficking.

11. We are satisfied that by stating that the only irresistible inference to be drawn was that these drugs were in the Applicant's possession for the purposes of trafficking, the judge had rejected the suggestion raised by the Applicant in his confession that the drugs were in his possession for his own consumption. As the court has so often had to say, a judge does not have to state precisely what evidence has been accepted or what has been rejected in dealing with every aspect of the law or the facts which may arise. The fact that the judge in this case did not expressly mention that she rejected a defence of simple possession does not mean that it was not considered. We feel that it was implicit from the verdict of guilty to the charge as it stood, that the drugs were not in the Applicant's possession for self-consumption only.

12. In those circumstances, we reject the very able submissions that have been put before us today by Mr. Grounds and we dismiss the application.

Representation:

Mr. D.G. Saw, S.C., D.D.P.P. and Miss Irene Poon, G.C. for D.P.P./Respondent.

Mr. Christopher Grounds instructed by Messrs. Bobby Tse & Co. for Applicant.