HKSAR v. Chew Sik Pok
Read the full judgment text of CACC 502/1998 on BabelCite. This Court of Appeal judgment was delivered on 29 April 1999 before Power VP, Nazareth VP, Mortimer VP.
Criminal law – trafficking in dangerous drugs – methamphetamine hydrochloride (Ice) – simple possession – appeal against conviction – sufficiency of summing-up – direction on cautioned statement – direction on defence of self-consumption – sentence for simple possession with latent risk – application of HKSAR v. LAI Kam-sang – drug addict with no prior trafficking convictions – regular employment – whether summing-up fatally flawed conviction. The applicant was charged with trafficking in 25.55 grammes of crystalline solid containing 24.12 grammes of methamphetamine hydrochloride after police observed him placing a Marlboro cigarette box containing the drug into a rubbish bin at the Sham Shui Po MTR Station. The defence was that the drugs were for his own consumption, providing about six weeks' supply. The applicant had eight prior convictions for possession of dangerous drugs since 1992, no trafficking convictions, and was in regular employment. The trial judge directed the jury on the use of the cautioned statement in terms that were confusing and, in the context of a trafficking charge, dangerous, suggesting the jury could consider 'incriminating parts' of a statement that was in fact wholly exculpatory. The summing-up failed to identify the real issue, was not tailored to the facts, and did not emphasise the considerable body of evidence supporting the self-consumption defence. Held, allowing the appeal: the conviction for trafficking was quashed and a conviction for simple possession was substituted. On the first ground, the direction on partial trafficking was not called for but would not alone have warranted interference. On the second ground, the direction on the applicant's behaviour was unobjectionable. On the third ground, the direction on the cautioned statement was confusing and dangerous in a trafficking case where the statement was exculpatory. On the fourth ground, the summing-up fatally flawed the conviction by failing to identify the real issue and not directing the jury on the strength of the defence evidence. Sentence: starting at 18 months for simple possession (per HKSAR v. LAI Kam-sang), enhanced by 6 months for latent risk (24 months), with a one-third discount for preparedness to plead to simple possession, giving 16 months. Distinguishable from Lau Chi-chiu (63.38 grammes of Ice). Original seven years and nine months' sentence replaced with 16 months.
Legal issues: Direction on use of cautioned statement containing admission and explanation · Failure to identify real issue and direct on self-consumption defence · Sentence for simple possession with latent risk
Outcome: Appeal allowed; conviction for trafficking quashed and substituted with conviction for simple possession of dangerous drugs.
Cited by 13 cases
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CACC000502/1998 CACC502/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 502 OF 1998 (ON APPEAL FROM HCCC 111 OF 1998)
------------------------------- Coram: Hon. Power, V.-P., Nazareth, V.-P. & Mortimer, V.-P. Date of Hearing: 15 April & 29 April 1999 Date of Judgment (Conviction): 15 April 1999 Date of Judgment (Sentence): 29 April 1999 ---------------------- J U D G M E N T ---------------------- Power, V.-P. (giving the judgment of the Court): 1. The applicant faced one count of trafficking in a dangerous drug. It was particularized that he, on 29th December 1997, at the Sham Shui Po Mass Transit Railway Station, unlawfully trafficked in a dangerous drug, namely 25.55 grammes of crystalline solid containing 24.12 grammes of methamphetamine hydrochloride. He pleaded not guilty to that charge but was found guilty after trial before Deputy Judge Wong and a jury and was sentenced to imprisonment for seven years and nine months. He now appeals against both conviction and sentence. 2. The facts which we take from the summing-up were as follows:
3. There was a statement from the Government Chemist to the effect that the average dose of Ice "per hit." for addicts in Hong Kong is up to 0.7 grammes. From the evidence of the defendant the quantity which he was carrying would, as he was taking less than the average dose "per hit." referred to by the Government Chemist, have provided him with a supply for about six weeks. 4. The defendant gave evidence which was largely in accord with the evidence that had been given by the prosecution. He said he purchased the 'ice'; that he was on his way home but that he had to meet a man called Lau in Sham Shui Po MTR station; that he went to the station where he thought he was being watched, became frightened and threw the ice packet into the rubbish bin. He admitted telling a man who had looked into the bin to leave because he was afraid the man would take his drugs. 5. The first Ground of Appeal argued by Mr. Wong, for the applicant, submitted that the judge erred in directing the jury that the applicant could be convicted of the offence of trafficking even if they were only satisfied that some of the drugs were for trafficking and some were for self consumption when there was no issue at trial either in the prosecution's case or in the defence case that some were for trafficking and some were for self-consumption. We must say that we are rather puzzled when seeking to ascertain why such a direction was given. The prosecution case was, quite clearly, that the applicant had these drugs in his possession for the purpose of trafficking. The defence, on the contrary, was that he had them for his own consumption. In our view a direction of this nature was not called for in the circumstances of the present case. We would not, however, had this stood alone, have been satisfied that it would have warranted our interfering with the conviction. 6. The second ground suggests that the judge erred in directing the jury that they had to consider the behaviour of the applicant in order to find whether he was dealing with dangerous drugs. We find it difficult to see how those directions of the judge can be faulted. Of course he was entitled to tell the jury that they should look at all the applicant did when under observation by the police officers when coming to their conclusion as to whether or not he was trafficking. 7. The third ground, however, is one which gives us considerable concern. This complains of the following direction which the judge gave to the jury as to the use that they could make of the cautioned statement:
8. This direction was, to say the least of it, confusing. We are not sure what the jury would have made of the direction that the statement was "evidence of the facts alleged or admitted" and, indeed, we are unable to say what they would have thought when told that "With this exception, a statement made by an accused is never evidence of the facts in the statement." It seems to us that the judge was here giving a direction which might have applied had the defendant not given any evidence. Of course in the present case he did give evidence and he gave evidence which was entirely in accord with the statement which he had made after his arrest. The only proper direction in such circumstances was that the evidence of the applicant was in accord with his cautioned statement, that there was no inconsistency between the evidence and the statement, and that the statement therefore gave support to the credibility of the applicant when giving evidence. It was, further, we are satisfied, dangerous and confusing, given that the charge is one of trafficking, in terms that they could consider "incriminating parts" of it upon coming to their verdict. In the context of the charge and the defence thereto the statement was wholly exculpatory. 9. We turn to Ground 4. 10. In this ground it is submitted that the judge erred in failing to direct or point out to the jury that the defence case that the applicant had the drugs for the purpose of self-consumption was supported by overwhelming evidence and that there was no evidence to contradict the evidence of the defendant and his witness as to the important matters in issue. While we think the use of the word "overwhelming" might be too strong, it certainly can be argued that there was no cogent evidence to contradict the evidence of the applicant. The real issue for the decision of the jury was whether the quantity of Ice and the applicant's actions at the Sham Shui Po MTR Station were sufficient to satisfy them beyond reasonable doubt that he was unlawfully trafficking. The jury should, in fairness, have been told that the quantity was not, in itself, a cogent evidence given the evidence of the Government Chemist and of the applicant himself which indicates that he had only what would have been about 11/2 months' supply. It would have been fair further to observe that the evidence of his actions at the MTR station was just as consistent with his version as it was with the prosecution version and, particularly, to advert to the fact that it was supported by the evidence of an apparently independent witness. The jury should have been told that they would have wholly to reject the applicant's evidence which was not, in itself, inherently incredible, before they could they convict. 11. We turn to see how the judge put the matter to the jury. 12. Having given the confused direction as to the cautioned statement, he went on to tell the jury that they had to arrive at a verdict in accordance with the evidence but he never set out the real issue. The consistency of the defendant's version in his cautioned statement and in his evidence the fact that the quantity was just as consistent with being for his own consumption as it was with trafficking, the fact that his actions were just as consistent with his own version as they were with the prosecution case were referred to by the judge. This was a far from strong case. Indeed some judges might not have allowed it to go to the jury. Accepting that there was some evidence of trafficking, this matter required a careful and balanced summing up emphasizing the very considerable body of evidence helpful to the accused. This it did not get. The judge never identified the issues for the jury. The summing-up was not tailored to the facts of the case and this, in our view, fatally flaws the conviction. 13. The application will be allowed. The hearing of the application is treated as the hearing of the appeal and the conviction quashed. We are satisfied that there is sufficient evidence, indeed it is admitted by the applicant, that he was in possession of dangerous drugs and that the conviction should have been recorded for simple possession and we substitute such a conviction for the conviction of trafficking that was imposed. Sentence 14. We have already quashed the conviction for trafficking and imposed a conviction for simple possession. The facts revealed that the applicant was arrested on 29th December 1997 at the Sham Shui Po Mass Transit Railway station when he had in his possession 25.55 grammes of a crystalline solid containing 24.12 grammes of methamphetamine hydrochloride - the drug commonly known as Ice. He was charged with trafficking and pleaded not guilty. He was found guilty after trial before Deputy Judge Wong and a jury and came before this court appealing against that conviction and was successful. The amount was not large. His evidence was that he was an addict, that he had the amount there for his own consumption and that he would have consumed that amount in about six weeks. He said that at the time he was taking the drugs home having just purchased them. He is clearly a drug addict as he has had eight convictions for possession of drugs since 1992. We note that he has no conviction for possession for the purpose of trafficking. We note also that he was in employment at the time of his arrest. These are, when we come to consider what is known as the latent risk factor, important considerations. Following the judgment in HKSAR v. LAI Kam-sang, Criminal Appeal No.578 of 1998, we are satisfied that we must start at the currently accepted sentence for simple possession, which is 18 months, and must then, if it is appropriate, enhance that sentence for latent risk. In this case, given the amount and given the time which the applicant admits that he would have that amount in his possession, reducing, of course, from day to day, we are satisfied that there was a latent risk but that it was not one of any real gravity. We certainly do not approximate this latent risk to that which existed in the case of Lau Chi-chiu, Criminal appeal No. 395 of 1998, where the defendant had 63.38 grammes of Ice. We are satisfied, given that that his original intention was to take the drugs to his home where he usually kept them, that he is in regular employment and that he has clearly been an addict for a number of years without any conviction for trafficking, that the latent risk should attract a sentence of a further six months. We therefore add six months to the 18 months, for simple possession, giving us a total of 24 months. He is entitled to the usual discount for plea as he has at all times been prepared to plead to simple possession. This brings the sentence back to 16 months. 15. The conviction for trafficking has already been quashed and the original sentence has fallen with it. We substitute, therefore, a conviction for simple possession and impose a sentence of 16 months.
Representation: Mr. Eddie Sean, S.G.C. (D.P.P.) for Respondent (15.4.1999) Ms. Catherine Ko, G.C. (D.P.P.) for Respondent (29.4.1999) Mr. Wong Po-wing assigned by D.L.A. for Applicant. |
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