HKSAR v. Lau Ping Him & Another

CACC000455/2000

CACC 455/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 455 OF 2000

(ON APPEAL FROM HCCC NO. 88 OF 2000)

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Coram: Hon Mayo Ag CJHC, Stock JA and Suffiad J in Court

Date of Hearing: 19 April 2001

Date of Judgement: 19 April 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. The applicants were convicted after trial before Deputy Judge Toh and a jury upon an indictment which contained one count of unlawfully trafficking in dangerous drugs, namely, 19.414 grammes of methamphetamine hydrochloride; and 12.59 grammes of cannabis resin. They were each sentenced to a term of seven and a half years' imprisonment. The 1st applicant (D1) seeks leave to appeal against conviction as well as sentence and the 2nd applicant (D2) seeks leave to appeal against sentence only. He has previously abandoned his appeal against conviction.

2. The undisputed facts of the case are these. On the evening of 15 October 1999, a team of police went to a guesthouse in Lee Garden Road, Causeway Bay, to conduct a check. One of them went to Room D for that purpose. After a delay, D1 opened the door, and in the room were six persons, including the two applicants. We have seen a photograph of the room and it reveals an important feature of the case, which is that this is a very small room, almost all of which was taken up by a double bed. Underneath the pillow on the bed were two packets of cigarettes, one of which had been opened, and inside that was found a packet which contained the drug 'ice': 0.049 grammes of that substance. Then there was a tissue holder on the floor by the side of the bed and that, too, contained 'ice', namely, 3.194 grammes of the substance. By the bed is a bedside table and under it, but fully open to view - for the bedside table is no more than a shelf rather than a cabinet - was a large black plastic bag, and inside that black plastic bag was found four bags, each with 'ice', a total of 16.711 grammes. Then by the bed, also in view, was a box which contained a wad of small transparent plastic bags, about 190 of them, unused, as well as a spoon and adhesive tape, and there was also found an electronic scale, and some straws, and a plastic glass. The electronic scales were lying on the bedside table itself. There was also found a large roll of aluminium foil.

3. Inside the black plastic bag was another bag which contained some telephone bills, one of which was in D2's name and there was a photocopy of his identity card. His evidence was that he had given these documents to D1 asking him to pay telephone bills on his behalf. There was also inside that bag a telephone bill in the name of Tsang Ngai See, as well as a photocopy of an identity card of a Mr Tse. Tsang Ngai See was D1's girlfriend.

4. The case against D1 comprised various strands. He had rented the room the previous day. According to his own statement, he had rented the accommodation at that guesthouse on several prior occasions. He occupied it with Tsang Ngai See, his girlfriend, who was also there when the police arrived. An officer gave evidence that after D1 had opened the door, the people inside were nervous, and none said what they were doing there, although D1 said that they were playing "chor dai dee". He saw D1 look towards the head of the bed, and his suspicions were aroused, so he went there and lifted a pillow, and he saw the cigarette packet with 'ice'. The search continued with the result which we have outlined. Each time a packet of suspected drugs was found, the officer held it aloft asking to whom it belonged, but no one replied. Then D1 and D2 were arrested and after caution, according to this evidence, D1 replied: "Ah Sir, no need to ask, this stuff is mine." The evidence was that D2 then interposed, saying: "You already have something, let me admit." In other words, he wished to make an admission as against himself, D2, because D1 was already in trouble. The trouble to which this implied reference was made was the fact that D1 was subject then to recall to a drug addiction treatment centre. Then, according to this evidence, D1 was taken to a room and asked to sign the officer's notebook in which was recorded the admission recently made by D1, but D1 refused to sign it. When he was later interviewed at the police station, he is said to have explained his refusal to sign by saying that once he had heard that D2 was willing to take the blame for him, he had second thoughts about shouldering the blame for D2.

5. The retail value of the drugs found was $8,464.

6. As for trafficking, that was an inference which the prosecution invited the jury to draw, from the quantity of drugs found, the presence of the large number of plastic bags, and the presence of the electronic scales.

7. At 5.30 a.m. on 16 October, D1 was interviewed and that is when he explained why he had refused to sign the notebook. He then denied that the drugs had anything to do with him; he had rented the room only for one day, and he said that the drugs must belong to D2 who had visited him that day, bringing the black bag with him. He knew nothing of the electronic scales, or of the plastic bags. When D2 arrived he, D1, was asleep and woke a little, but went back to sleep. Then two others arrived, and they started playing games, and then the police turned up.

8. Upon his arrest, D2 is said to have asserted that the drugs found were all his and for his own consumption and had nothing to do with the others in the room. When he visited D1, D1 was not looking and he, D2, had hidden all the drugs and paraphernalia in various parts of the room including under the pillow. This was an assertion which the jury evidently had, and we are not surprised, some difficulty in accepting. He said that he was hiding all the illicit goods when D1 was asleep, and he hid the drugs because his trousers were bulging with them.

9. At trial both applicants gave evidence on their own behalf, and D1's evidence was much along the lines of the second and subsequent statements given by him to the police. He testified that he had never made any incriminating admissions to the police about the drugs. That is an assertion which he has repeated to us today in the course of his submissions in support of his application. He further said in evidence that he refused to sign the notebook because he did not agree with the accuracy of its contents. When he was asked why, then, he had signed a subsequent statement which recorded him as saying that he did not sign the notebook because he thought D2 was to take the blame, his answer was that he had succumbed to an angry response by the officer who did not want to write out another statement. In her summing-up, the judge commented that this might be difficult to believe of a 37 year old former police officer, as is this applicant. It is also noteworthy in this regard that when the applicant was interviewed on video shortly after, he made no complaint, nor gave any hint of having signed a statement which was untrue.

10. D2's evidence was exculpatory. He said he had nothing to do with the drugs, and that he had gone to D1's premises to obtain a loan, and that D1 was sleeping. He played video games, and then some other games after other persons had arrived. He said that there was a discussion when the police arrived about who was going to admit, because D1 was already in trouble, and he, D2, deceived D1 by saying that he would admit, although he never in fact did so. When subsequently he signed a statement which was inculpatory, he only did that after threats and without reading what he was signing.

11. It is true that there was a video interview with D2 when he made admissions, but he says he made those under a misapprehension about the quantity of drugs found, and because he was promised bail.

12. We have studied the summing-up with care. It is a comprehensive summing-up which properly covers all the issues of law and fact that required to be covered, and the directions as to law are accurate and clear.

13. D1's grounds of appeal assert that there was no evidence to convict him. That is not correct. There was evidence upon which a reasonable jury properly directed, as was this jury, was entitled to convict D1, and we have referred to that evidence. We have referred to the admission he made to the possession of drugs. He says that he made no such admission and that the evidence against him was constituted by the evidence of only one police officer. That may well be, but if the jury believed the evidence of that officer, as clearly they did, that sufficed, and it is not for us to substitute our view as to the credibility of that evidence. Further, this applicant was the occupant of the room and in the light of the evidence, including the photographs, it is facile to suggest that he did not know about the drugs and, then, not knowing about them, immediately made an admission to the police they were his. There was evidence that he behaved suspiciously when the police entered, and indeed it was his own behaviour that led the police to the drugs in the first place. The jury concluded that he was well in with whatever was going on with the drugs, and that was a view to which they were entitled to come.

14. The applicant says that the judge held enormous prejudice against him. We reject that suggestion. The judge's summing-up was balanced and complete and, although she made a few remarks about aspects of the evidence which intimated a view as to credibility on this particular or that, her remarks did not overstep any acceptable boundary.

15. Finally, the applicant complains that the judge admitted that the evidence of the oral admission made by him although excluding the written record of that admission. We do not have a copy of the judge's reasoning, but it is apparent enough to us from the facts which we have, what must have happened. Clearly the judge took the view that the notebook added nothing, because the applicant had refused to sign it, and the only point of its production, if signed, would be to show the adoption by the applicant of his earlier statement. Since there was no such adoption, there was no room for the production of the notebook. But that does not mean that the original comment was not admissible or that there is ground for excluding it in the exercise of her discretion. Had she ruled that the notebook entry was somehow suspect, that would have been a different matter, as casting doubt on the reliability of the evidence of the oral admission. But that is not this case.

16. There is nothing in this application for leave to appeal against conviction, and it is dismissed.

17. That brings us to the question of sentence.

18. The judge took a starting point of seven and a half years and, taking the view that there was in the case of both applicants no mitigation, that is the sentence she imposed. In the case of D1, she also activated a three-month suspended sentence for possession of dangerous drugs, and ordered it to run consecutively to the term imposed to the new offence.

19. D1 is aged 37 years and has a number of previous convictions for possession of dangerous drugs, a conviction for obtaining by deception, and one for possession of obscene articles. He says in his application that this is the first trafficking offence for which he has been convicted. He also says in his written grounds that he has a daughter and a son living with his elderly mother, and that they are dependent on public assistance; and that he is very remorseful.

20. D2 is a man with a string of previous convictions, including robbery, burglary and possession of dangerous drugs. He is aged 28 years. He says in his grounds that the sentence is too heavy, and we note that his wife has recently given birth to a child. He has today expressed regret, and he suggested that he has now realized the harm that is caused by trafficking in drugs. We certainly hope that, for the future, he realizes that, but the realization now, after the event, is not a mitigating factor.

21. Given the quantity of drugs, the starting point adopted by the judge was perfectly within an acceptable range. One matter which caught our attention is the question of assertions that some of the drugs were for personal consumption. The fact was mentioned as an assertion by the trial judge in her summing-up. She correctly directed the jury that so long as they were sure that part of the drugs were for trafficking, it mattered not, for the purpose of verdict, that part might also be for personal consumption. The judge did not, when sentencing, say anything about that; in other words, she obviously proceeded on the assumption that it was all for trafficking. D1 has mentioned the point in his address today. We have asked counsel for the respondent what stand in this particular regard is taken by the respondent on the facts of this case, but we are bound to say that the assistance we received was less than helpful. So, to this specific end, we have studied the facts for ourselves. The inference of possession for the purposes of trafficking was overwhelming, and that inference must relate to the significant majority of the drugs found. The judge must, we think, have had the point in mind. For the purpose of sentencing we note that the guideline for trafficking in 'ice' is that a term of seven to ten years is warranted for a quantity of between 10 to 17 grammes of the drug. If it may be that something less than 19 grammes was for trafficking, it was clearly, on any view, not much less, and well more than 10 grammes; and nothing said by either the applicant shows the sentence to be either manifestly excessive, and it is certainly not, in either case, wrong in principle. Accordingly, the applications for leave to appeal against sentence, in the case of both D1 and D2, are dismissed.

Representation:

1st and 2nd Applicants in person

Mr Eddie Sean, SADPP (Ag) of Department of Justice for Respondent