HKSAR v. Keung Ka Lun

CACC482/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 482 OF 2005

(ON APPEAL FROM DCCC 1401 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP, McMahon and Lunn JJ in Court

Date of Hearing : 15 March 2006

Date of Judgment : 15 March 2006

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.The applicant seeks leave to appeal his conviction after a trial before H.H. Judge Whaley in the District Court of an offence of trafficking in 23.78 grammes of heroin.

2.The facts of the case were that the applicant had been stopped and searched by police officers as he entered a building in Mongkok.  Two small plastic bags containing the charged drugs were found in his trousers pocket.  Those bags contained 73 individually wrapped pellets of heroin.  These facts were agreed at trial and the simple issue before the judge was whether the drugs may have been for the applicant’s own consumption as he testified at trial or whether he possessed them for the purpose of trafficking.

3.Mr Oliver Davies for the applicant now advances a single ground of appeal which can be expressed as follows : that the judge erred in inferring that the drugs were intended for trafficking.

4.Mr Davies’ arguments in support of that ground of appeal effectively form a series of complaints as to how the judge approached the evidence.

5.The first complaint is that the judge did not properly analyse the applicant’s evidence, but concluded that the applicant was untruthful simply because he was evasive and appeared to be a poor witness.  Mr Davies says there was in fact nothing inherently incredible in the applicant’s evidence and the judge was wrong to reject it in the way that he did.

6.With respect it seems to us that the judge carefully and thoroughly analysed the applicant’s evidence and gave cogent reasons for rejecting it.  The applicant’s evidence was to the effect that he had used his month’s wages to make a bulk purchase of $10,000 worth of heroin from his drug supplier in Mongkok.  He said he was an addict who consumed about 0.6 to 0.7 grammes of heroin a day.  He said he was able to make that bulk purchase because he worked for a transportation company in Mongkok and earned $9,500 a month, with overtime of about $3,000 to $4,000 per month, and was therefore able to afford the purchase of the drugs found on him.

7.In his reasons for verdict the judge carefully went through the applicant’s evidence and pointed out various matters which obviously undermined its credibility to a significant extent.

8.He referred to the fact that the applicant was able to give only a vague description of his work duties; that he could not remember the exact address of the premises where he worked; that when the location he described as those premises was investigated it was found to be a location which was under renovation or reconstruction with no trace of any transportation company or any other company conducting business there.

9.The judge referred to the fact that the applicant had only $450 when he was arrested.  It was common ground that the applicant had no other savings and that the sum of $450 was all he had to sustain him for the month until his next wages were paid, though the judge did refer to the applicant’s evidence that he was able to seek advances from his employer from time to time.  But no documentary evidence of the applicant’s employment was available as the applicant said he was paid in cash.

10.It is plain from the context of the references made by the judge to these aspects of the applicant’s evidence that he rejected the applicant’s evidence particularly as to his employment and as to the fundamental issue as to whether the applicant paid for the drugs found upon him from his month’s wages.

11.It may be that it would have been better for the judge to have set out his analysis of the applicant’s evidence separately from the summary of that evidence he provided in his reasons for verdict.  However, it is perfectly plain, from the approach taken by the judge, why he rejected that evidence.  And it is quite clear that there was ample reason to do so.  There is no merit in the complaint that the judge did not properly or adequately analyse the evidence of the applicant.

12.Having dealt with the applicant’s evidence the judge said this :

“37.   Every case, of course, turns upon its own facts and circumstances, and I reiterate that the defendant was a very poor witness and evasive in answering many of the questions that were put to him.  As I have already commented, it was clear to me that the defendant was not telling the truth in court.

38.   The only reasonable inference to be drawn from all the evidence presented in this case, in my view, is that the defendant had the 73 pellets which were found upon him by the police, for the purpose and with the intention of selling them, namely that he was trafficking in them, and I accordingly find him guilty as charged.”

13.From that portion of the reasons for verdict Mr Davies complains that the judge has effectively used his rejection of the applicant’s evidence as support for his inferring that the applicant intended to traffic in the drugs found in his possession.

14.With respect there is nothing in the reasons for verdict to suggest this was so.  The judge in finding that the applicant was not telling the court the truth simply rejected his evidence.

15.Finally, Mr Davies complains that there was in any event insufficient evidence upon which to base a conviction for trafficking.  In doing so he points to various aspects of the evidence which he says supports the applicant’s case that the drugs were for his own consumption.  Those aspects concern the fact that no drug-trafficking paraphernalia was found in the applicant’s premises when he was taken there after his arrest, and that the applicant had a previous conviction for possession which resulted in his being detained in a Drug Addiction Treatment Centre.

16.We do not think those matters are particularly probative one way or the other.  So far as the lack of paraphernalia in the applicant’s premises are concerned, there was neither trafficking equipment such as scales and packaging, nor material for consumption such as tin foil or syringes.  In short the absence of any drug-related materials at the applicant’s premises was probatively neutral.  The same applies to his previous conviction for simple possession and treatment for addiction.  The fact that a person is an addict does not necessarily disprove an allegation that he was trafficking in drugs.

17.The judge was aware of these matters.  He said in his reasons for verdict in respect of the lack of paraphernalia found in the applicant’s premises :

“30.   He was questioned as to why, since he always consumed the drugs at his home, according to him, no drugs were found there or any indication that drugs were used at his home.  He explained that where he lived, several rooms had been partitioned off from a large flat and he lived in one of those rooms, and he said that he kept his supply of dangerous drugs for self-consumption, not in his room but in the communal toilet which served all the rooms.”

And in respect of the applicant’s previous conviction for possession, the judge said :

“4.   He was sentenced to a Drug Addiction Treatment Centre where he spent four months and was released in October 2000.  He remained drug free for about a year he said, then relapsed, and he was still addicted at the date of this offence.”

The judge obviously took these matters into consideration so far as they went.

18.So far as the complaint of Mr Davies is concerned that in any event there was insufficient evidence upon which to convict the applicant of the trafficking offence, we are of the view that the evidence in the case, though circumstantial, was substantial.  The applicant possessed 73 pellets of heroin.  Each was wrapped.  The wrappings were colour-coded.  The pellets were in two separate plastic bags.  On its face the possession of drugs in that form is, as the applicant acknowledged in his testimony, somewhat inconsistent with them being purchased in bulk.  Further, we note he was arrested with the drugs after being followed into a building which was not where he lived.  That we think seems inconsistent with a person taking drugs home for his own consumption as the applicant suggested he was doing in his evidence.

19.We cannot say that the judge was not entitled to draw the inference that the applicant possessed the drugs for trafficking and this final complaint of Mr Davies must also fail.

20.Accordingly the application for leave to appeal against conviction is dismissed.

Ms Louisa Lai, SADPP of the Department of Justice for HKSAR

Mr Oliver H. Davies, instructed by Messrs Augustine C.Y. Tong & Co., for the Applicant