HKSAR v. Mui Tak Ming

HCMA001058/2002

HCMA1058/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1058 OF 2002

(ON APPEAL FROM KTCC 5089 OF 2002)

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 31 December 2002

Date of Judgment: 31 December 2002

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J U D G M E N T

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1.The appellant in this case appeared before a Deputy Magistrate facing two charges of trafficking in dangerous drugs. He indicated at the outset that he was prepared to plead guilty to simple possession but he denied that he was involved in trafficking in dangerous drugs.

2.He was convicted of simple possession on the first charge and trafficking on the second charge and was sentenced to a total of 14 months' imprisonment.

3.He now appeals against his conviction for trafficking on the second charge. He does not appeal his conviction for simple possession on the first charge or his sentence on either.

4.The quantity of drugs in the second charge was not large : a plastic bag containing 6.15 grammes of a mixture containing 1.39 grammes of heroin hydrochloride; a plastic bag containing 5.9 grammes of a mixture containing 0.03 grammes of heroin hydrochloride; three packets containing 0.80 grammes of a mixture containing 0.18 grammes of heroin hydrochloride and a plastic bag containing 3.15 grammes of a crystalline solid containing 3.11 grammes of methamphetamine hydrochloride. The total heroin in the second charge was contained in five packets and was 12.85 grammes of a mix containing 1.6 grammes of heroin, a very weak mix of heroin.

5.The facts were simple, and show the police raiding the appellant's flat and finding these drugs in a plastic box in a bathroom cabinet. Admissions apparently made at the scene and a later recording of them were not allowed into evidence. The appellant himself chose not to give evidence or call any witnesses and the magistrate dealt with that in the proper way.

6.In a brief Statement of Findings, the learned Deputy Magistrate pointed out that the drugs were found in a box in the bathroom, that they belonged to the appellant and that he knew what they were. None of this was in dispute and he had no difficulties, in such circumstances, finding those to be the facts.

7.The evidence that the appellant was trafficking in the drugs listed in charge 2 came from the other items found in the same plastic box as the drugs. Apart from the drugs in five packets, there were 14 small plastic bags, an electronic scale, some strips of plastic held together by a clip, a pair of scissors and a lighter. I have today seen the exhibits which were produced to the magistrate. Faced with these exhibits, the magistrate found that the only reasonable inference he could draw was that the defendant had the drugs for the purpose of trafficking them.

8.Mr Davies for the appellant relies on a single ground of appeal that the magistrate was wrong to draw that inference.

9.In support, he argues a number of matters. He says that there was no evidence that the quantity found was more than a user needed or more than this appellant could afford. This is true but the prosecution never alleged otherwise. That is not the way this case was presented.

10.Mr Davies suggested in his written arguments that there is no evidence that the scales were capable of measuring minute quantities. I have seen the scales. They were before the magistrate. Small quantities are clearly precisely what they are for, and to be fair, Mr Davies does not pursue that point today.

11.There was no evidence, says Mr Davies in his written submissions, of the number of plastic bags found in the box. That is wrong. The exhibits are plain, there are 14 small bags clear for all to see.

12.The appellant contends that the plastic bags found in the box had not being shown to contain small quantities of drugs and that it was the larger quantities of drugs which were found in such bags, not the small deals. This is clearly so but it does not help the appellant. In the box were found two plastic bags containing the larger amounts of drugs, 6.15 grammes of a mixture and 5.9 grammes of a mixture and three small deals in plastic wraps. But also in the box were strips of plastic, and scissors which might be used to cut them to size. Such strips of plastic were used to wrap individual deals, as is shown by the three found in the box and the 14 small plastic bags found were of the size into which the wrapped deals could be placed. The photographs of the exhibits shows that the clip was used to hold together the strips of plastic. Quite why a user would want to go to so much trouble for his own convenience escapes me.

13.The appellant points out that there was no caffeine, no blender, no razorblades. I agree, and it is the case that such items are often found where drugs are being diluted, or cut, before sale. The point however ignores the strength of the heroin in this case. The mixture was so weak that it could scarcely accommodate any more cutting. It must be obvious that the drugs had already been reduced in its strength.

14.Mr Davies contends that the fact that the learned magistrate convicted the appellant of simple possession in the first charge but trafficking in the second charge is inconsistent. It is not entirely clear why the magistrate did this, and I would have been helped by some explanation, however brief, as to why he came to the conclusion he did.

15.I do not believe that a lengthy discussion of the evidence is necessarily required in a Statement of Findings nor is a magistrate required to state precisely what evidence he accepted and what he rejected. He is not required to :

"state the whole of the law applicable to a case or to review the whole of the evidence."

(R. v. R.E. Low [1961] HKLR).

But he should :

"state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to do its duty."

(R. v. Lam King Ming, Cr. App. 601 of 1979, unreported).

16.It is perhaps surprising in all the circumstances of this case that the appellant was not convicted of trafficking in the first charge as well as the second charge, but without wishing to guess what the magistrate had in mind, what is clear is that he dealt with these charges separately, and he was entitled to come to the conclusion he did in respect of each charge. I may have come to a different conclusion were I trying the case, but that is not the point. He was entitled on the evidence before him to reach the conclusion he did and I cannot say on the papers before me that the verdicts are inconsistent. If I may refer to HKSAR v. Chung Chi Pui & Ors [1999] 1 HKLRD C2 :

"In order to show that there were inconsistent verdicts, a defendant must show that the verdicts could not stand together, meaning thereby that no reasonable jury who applied their mind properly to the facts could have arrived at the conclusion, and once one assumed that they were an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions could not stand."

17.That is a very high standard and it has not been reached.

18.Mr Mui, your appeal fails. Indeed, it is difficult to see what inference the magistrate could have drawn from the exhibits found with the drugs other than that they were for trafficking.

Representation:

Ms Vivien Chan, GC for DPP

Mr Oliver H. Davies, instructed by Messrs Paul Chan & Co.,for the Appellant