HKSAR v. Wong Tai Shing

CACC 234/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 234 OF 2005

(ON APPEAL FROM DCCC NO. 1179 of 2000)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA, and Lunn J

Date of Hearing: 16 May 2006

Date of Judgment: 16 May 2006

Date of Reasons for Judgment: 1 June 2006

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REASONS   FOR   JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.The applicant was convicted in the District Court on 4 May 2005, following a trial before Judge M Yuen, of trafficking in a mixture containing 48.97 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He sought leave to appeal against conviction.

2.Many of the facts of the case were agreed.  The defence had made it plain from the outset that the applicant's case was that he was merely a consumer of heroin and that his possession of the heroin identified in the charge was merely for that purpose.  The sole issue at trial of any significance, therefore, was whether the prosecution could establish that the applicant was in possession of the heroin for the purpose of trafficking.

3.The grounds of appeal made several criticisms of the judge's approach to the evidence and alleged that there were material flaws in her findings which had resulted in a verdict which is unsafe or unsatisfactory.  At the conclusion of proceedings on 16 May 2006, we gave leave and, treating the hearing as the appeal, we allowed the appeal and quashed the conviction and the sentence imposed for it.  We made an order, after hearing the arguments of counsel, for the case to be retried.  We further ordered that the case should be re-listed at the District Court within two weeks with a view to a date being fixed for trial within about two months.  We now give the reasons for our decision.

Prosecution's case

4.We can in large measure adopt Mr Saw SC's helpful outline of the respective cases presented at trial by the prosecution and the defence.

5.On the evening of the 20 September 2000, police officers were on duty near a flat on the 1^st Floor of No. 5, 5^th Lane, Tai Tau Ling Tsuen, Sheung Shui, New Territories.  The officers stopped the applicant as he was approaching the flat and told him that they wished to search him and his flat.  The applicant then opened the door to the flat using his own set of keys.

6.Inside, he was searched and from his underpants the police took a red packet in which were two resealable, transparent plastic bags.  The plastic bags contained a substance which was subsequently found to be 55.80 grammes of a mixture containing 48.97 grammes of heroin hydrochloride.  On arrest, the applicant said:

“Ah Sir, I got so much just for self-consumption only.  The things inside the house have nothing to do with me.”

7.Later, he added:

“Ah Sir, I know nothing about the things inside the house.  I am only lodging there.  The other things belong to Lai Wai-shing.”

8.While the police were dealing with the applicant at the flat, Lai Wai-shing (Lai) entered having also used keys to do so.  Lai was searched and was found to be in possession of a total of 12 packets which were subsequently found to contain 4.06 grammes of a mixture containing 3.5 grammes of heroin hydrochloride.  (We were told that in due course Lai was charged with, and convicted of, one count of possession of dangerous drugs).

9.Inside the flat, the police found a number of items of potential relevance to their investigation.  In the bedroom, there was a postal scale and $4,500.  On top of a table in the living room, police discovered two towels, three lighters, a Crocodile Card belonging to the applicant, a toothpick, white tissue paper, betting slips, a cutter, a paper spoon, a syringe that had been used, five new syringes and a pair of scissors.  In addition, a pile of white plastic bags was found amongst a stack of newspapers near the table in the living room and two rolls of aluminium tinfoil were found on the floor.  Amongst other items in the living room, the police found the applicant's methadone card.  Subsequently, traces of heroin were found on the postal scale, the towels, the Crocodile Card, the toothpick, the cutter, several pieces of paper, and the pair of scissors.

10.It was an admitted fact that a number of items taken from the living room were “for packing dangerous drugs”, namely, “some white plastic spoons, spoon-shaped betting slip, some betting slips, scissors and lighters” and “for consuming dangerous drugs (i.e. cut tin foil and syringes with dangerous drugs and blood traces).”  The applicant admitted that he had cut the tinfoil with the scissors about 10 days prior to his arrest, to “chase the dragon” and, significantly, he stated that he would usually consume a quarter of an ounce (approximately 7 grammes) of heroin a day.  The street value in September 2000 of the heroin found on the applicant was $24,538.

11.The applicant was granted bail but, on 5 January 2001, he absconded and he was not rearrested until 7 January 2005 when the Mainland authorities handed him over to the police in Hong Kong.  (He pleaded guilty to a charge of failing to surrender to custody without reasonable cause at the start of the trial.)

Defence case and submissions

12.The applicant did not give evidence.  He was legally represented and seven principal submissions were made on his behalf.  We can take these quite shortly.  (1) As the applicant and Lai each had keys to the flat, the things inside could have been either in their joint possession or possessed solely by one or the other and that, apart from the Crocodile Card in the applicant's name, the methadone card bearing a photograph of the applicant, and the three keys seized from the applicant, there was no evidence to show who, of the two occupants of the flat, possessed the other items.  (2) The drugs that were seized from the applicant were in block form and, as nothing was seized from the flat with which to dilute the drugs for resale, the proper inference to be drawn was that the drugs were to be consumed in the form they were found.  (3) The $4,500, the scales, the rolls of aluminium tinfoil, the lighters, the betting slips, the cutter, the toothpick, the syringes, the presence of the heroin on the towels, and the fact of the applicant having hidden the drugs in his underpants on his way home were supportive of the applicant's admission to possession of the heroin for his own use.  (4) With reference to The Queen v Cheung Ping-chiu, CACC 162/1993 (unreported), it was accepted that in the District Court judicial notice could be taken that an addict's average daily consumption of heroin is between 0.25 and 0.7 of a gramme.  (5) The applicant might have exaggerated or lied when he said he consumed about 7 grammes a day but, as he consumed drugs by “chasing the dragon”, so it might “not be absurdly impossible” for the applicant to consume 7 grammes a day.  (6) No resealable plastic bags were found in the flat and the large plastic bags located in the pile of newspapers were too large to be used for trafficking in heroin.  (7) Finally, there was evidence before the court of the applicant's admission to the police that he was a drug abuser.

13.These arguments did not find favour with the judge who concluded that there was an “irresistible inference” of trafficking on the applicant's part.

Ground of appeal – judicial notice wrongly taken

14.Although four substantive grounds of appeal were advanced on the applicant's behalf, we need only focus on the first of these.  It was submitted that the judge had wrongly convicted the applicant of trafficking in heroin (rather than mere possession which the applicant had admitted) by utilising knowledge, seemingly derived from other cases, in order to make adverse findings of fact against the applicant.

15.The particular passages in the Reasons for Verdict, where the judge's findings of fact were criticised, read as follows:

“29. The drugs the defendant was hiding were two small blocks of heroin hydrochloride of a relatively high purity.

30. It has never occurred to me, throughout my 14 years of criminal sitting on the Bench, that heroin would be consumed in its pure form in blocks.  It has never occurred to me for all the drug cases that came before me that heroin were sold in block form for consumer usage.  Quite to the contrary, the common knowledge one acquired whilst hearing money laundering cases in drug trafficking charges is: the cutting of pure drug and the adulteration process of a drug is a special skill which needs to be acquired.  Adulteration of a drug is a technique not commonly known to those outside the trade.

31. In light of the form and the quantity of the drugs that the defendant was possessing, the availability of the postal scale for subdivision, the plastic bags available for wrapping …. and all the surrounding facts, I am prepared to accept as an irresistible inference that the drugs the defendant possessed [were] possessed by the defendant to be further dealt with by him.”

16.Just before this passage, the judge had set out in sub-paragraphs, numbered (i) to (xi), the surrounding circumstances to ascertain, as she expressed it, “the intent and the purpose of the possessor”.  These were as follows:

“(i) The defendant was found returning to the Flat at about 10.30pm hiding 2 small blocks of heroin hydrochloride, of a purity of 87.75% (48.97 salts /55.8 g mixture), inside his underpants.

In Cheung Ping Chiu CA-162 of 1993 the Court of Appeal took judicial notice of a person's average daily consumption to be between 0.25 g to 0.7 g of pure heroin.  Hence the quantity the defendant had in his possession (48.97 g) was sufficient to last roughly for a period of 71 days to 196 days.

(ii) One cannot deny the quantity of the drugs, per se, though large for personal consumption, cannot give rise to an outright irresistible inference of dealing in or dealing with.

(iii) The street value falling short of clear evidence on the defendant's financial income may not assist much.  Nevertheless the simple furnishing in the Flat indicated the defendant was less than well off shortly before his arrest.

(iv) The presence of lighters, syringes and tinfoil are neutral indicators on whether the possessor had them for his own use or for use of other consumers.

(v) There is no dispute about the fact that both Mr. Lai and the defendant both had keys to the Flat.

(vi) Both Mr. Lai and the defendant were each found in possession of heroin, of different form, different packaging and different purities.

(vii) There was only 1 single mattress found inside the entire flat, suggesting the normal occupancy is by a single individual.

(viii) The defendant's methadone card was found placed amongst the miscellaneous items inside the living room, next to the rental receipt for the Flat.

(ix) A crocodile card in the name of the defendant was placed on top of the green towel on the table in the living room.  Both the green towel and the crocodile card were confirmed to have traces of heroin on [them].

(x) The setting of the 2 towels on the table indicated drugs were handled at 2 different positions at the table, on the green towel and on the blue towel.  Both towels were confirmed to have traces of heroin on them.

(xi) The absence of resealable plastic bags for re-packaging is neither here nor there for the tablets of heroin hydrochloride found on Mr. Lai showed the heroin was wrapped in white plastic materials, a wrapping which resembled in colour and outlook to the material of the white plastic bags (exh E-28 shown in photo 32) found sandwiched in between the newspapers on the floor within the living room of the Flat.” (Appeal bundle pp. 22-24)

17.From these itemised findings, it is apparent that the judge found the most significant indication of trafficking to be the factors outlined in subparagraph (i) above.  The remaining findings were apparently regarded by the judge as more or less neutral.  We pause here to say that the judge might well have indicated that the applicant's assertion that he consumed 7 grammes (approximately a quarter of an ounce) of heroin a day was plainly an answer which she regarded as a lie designed to account for the comparatively large quantity of drugs he was carrying on arrest.  As such, the judge would have been entitled to find this was a deliberate and material lie which supported the prosecution's case.  She made, however, no such finding although she had rightly pointed out that the quantity in the applicant's possession represented a supply to someone who was merely a consumer of between 71 and 196 days.  We are also somewhat surprised at the way the judge neutralised the importance of the street value of the drugs which we would, with respect, have thought was capable of amounting to cogent evidence in support of the allegation of trafficking.

18.It follows, therefore, that the judge's remarks (set out in paragraph 15 above), at which Mr Ross directed his criticism, take on a very considerable significance.  In essence, the judge seems there to have taken what amounts to judicial notice, derived from her long experience on the Bench, that a consumer would not take heroin in an almost “pure form” and that heroin would not be sold in “block form for consumer usage”.  These two findings, once made, on the facts of the present case would inevitably have led to a conviction for trafficking.  Following from these observations, the judge took judicial notice of the fact that “the cutting of pure drug and the adulteration process of a drug is a special skill which needs to be acquired” and that “the adulteration of a drug is a technique not commonly known to those outside the trade”.  Again, the judge's acceptance in her own mind of this aspect of the drugs trade would have been an important part of her reasoning when deciding to convict the applicant of trafficking.  We have set out in full (at paragraph 16 above) all the other “surrounding facts” of which the judge was mindful and we emphasise again that the points she covered in her subparagraphs (ii) to (xi) added little in her opinion to the allegation of trafficking.

19.‘Judicial Notice' is dealt with in Archbold Hong Kong 2005 at paragraph 10-45 where it is stated that:

“Courts may take judicial notice of matters which are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary; and local courts are not merely permitted to use their local knowledge, but are to be regarded as fulfilling a constitutional function if they do so: Mullen v Hackney LBC [1997] 1 WLR 1103, CA (Civ Div).

When a court takes judicial notice of a fact, it finds (or directs the jury to find) that the fact exists although its existence has not been established by evidence.  The doctrine applies not only to judges but also to juries with respect to matters coming within the sphere of their everyday knowledge and experience: R v Rosser (1836) 7 C & P 648; R v Jones (RW) 54 Cr App R 63, CA; but courts should be cautious in treating a factual conclusion as obvious, even though the man in the street would unhesitatingly hold it to be so: Carter v Eastbourne BC 164 JP 273, DC.”

20.It is apparent that the judge was fully entitled (when sitting without a jury), as the applicant's legal representative at trial sensibly accepted, to find that the average consumption on the part of a consumer of heroin would be in the range of 0.25 to 0.7 of a gramme a day.  In The Queen v Chan Kwok-kei, CACC 324/1995 (unreported), this court (at page 7) said:

“… the judge would have been entitled to take judicial notice of the fact that the average consumption of a heroin addict is between 0.25 and 0.7 gms. of pure heroin a day :  see Cheung Ping Chiu (CA 162/93).  It would therefore have been open to the judge to conclude that, having regard to the quantity of the heroin in the Applicant's possession, it could not have been in his possession for his own consumption.  That is especially so when one remembers that there was no evidence that the Applicant was a heroin addict.  As was said in Chong Kin Cheong (CA 196/95) : 

‘Absent him being an addict, he must have been trafficking.'”

21.Unfortunately, however, whilst it was legitimate for the judge to take judicial notice of an addict's average daily consumption of heroin we are not able to say the same about the judge's other observations in paragraphs 30 and 31 of her Reasons for Verdict (set out in paragraph 15 above), unsupported as they were by any evidence or any other source from which judicial notice could legitimately be taken to support these findings.  Their importance is that these seem to have formed the cornerstone of her decision to convict.

22.There was, in particular, no evidence before the judge to suggest what purity is generally regarded as being desirable or acceptable to heroin addicts who inhale by “chasing the dragon” compared to those who inject their heroin.  Certainly, we were not referred to any legal authority from which it would have been permissible to take judicial notice that no consumer of heroin, by whichever method, will take that drug in an almost pure form.  The same equally applies to the comment that heroin would not be sold in “block form for consumer usage”.

23.As for the judge's suggestion that “special skill” has to be acquired for the adulteration of heroin and that this is a “technique not commonly known to those outside the trade”, by which we understand the judge to have been referring to those involved in the heroin trafficking trade, we need, as Mr Saw properly pointed out, go no further than to the well known judgment given by Silke VP in The Queen v Lau Tak-ming and Ors [1990] 2 HKLR 370.  In that case, where Mr Saw as it happens appeared as junior counsel for the respondent, this court issued new sentencing guidelines based upon the quantity of narcotic in mixtures containing salts of esters of morphine.  Silke VP, with reference to two earlier authorities he had cited, said (at page 379):

“It is, of course, relevant that both Suvit and Pravit were referring to esters of morphine and not to the almost pure form of salts of esters of morphine which makes up No.4 heroin.  This can be diluted, without a chemical process, into a saleable mixture of No.3.”

24.Later (at page 383), Silke VP continued by saying:

“It may well be that the addict, thinking he is buying No.4, is yet again being cheated by the dealers by being given SEM instead, thus mirroring the old diminution of No.3 purity.  But it is, as yet, too early for a definite pattern to have become established.  It is a factor which we shall have to bear in mind in the difficult exercise we have set for ourselves, the object of which is to assist trial courts in achieving consistency and fairness in sentencing and the profession in the giving of advice to lay clients.

In parenthesis it might be added that esters of morphine, the subject of the decisions in Suvit and subsequently Pravit, has ceased to feature.  There is little or no manufacture of dangerous drugs now taking place in Hong Kong.  We do not include in ‘manufacture' the dilution, or cutting, of No.4 to create either SEM or No.3.  This is still being done by the addition of caffeine together with one or more of the additives quinine, strychnine, antipyrine and ephedrine – even plain tea to give colour.  Briefly, this mixing process is carried out in a solution, because No.4 heroin is in the form of powder or small granules.  It is mixed with the various additives in hot water forming a paste.  The paste is then pressed through sieves or graters to form larger granules which are then dried.

We have had shown to us packets of No.4 heroin which take the form of small plastic ‘straw' or paper packets.  The average weight of each is 0.2 to 0.3 of a gramme and the narcotic purity is 80% to 90% …”

25.There is, so far as we have been made aware, no special skill required to adulterate heroin hydrochloride and, whether or not a skill of some limited kind were required, we fail, with respect, to understand in the present case how the judge's finding that skill was needed could have advanced the case against the applicant.  No additives, suitable for mixing with heroin to increase its quantity, were found at his flat and, as we have indicated, there was no legitimate basis for saying that drug addicts only consume heroin in an adulterated form.  It is not possible to say whether the heroin found in the applicant's possession was going to be diluted in due course but the inference drawn by the judge that it would be “further dealt with by him” based upon the purity of the heroin was not a finding on the present evidence which it was open to her to make.

Conclusion

26.Accordingly, for the reasons we have given, the appeal was allowed and a retrial ordered in the terms set out in paragraph 3 above.

Mr D G Saw SC, DDPP, and Mr Joseph To, SGC, of the Department of Justice, for the Respondent.

Mr Phillip Ross, instructed by Messrs Paul Kwong & Co., assigned by Director of Legal Aid, for the Applicant.