HKSAR v. Lee Chun Tat

CACC 271/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 2005

(ON APPEAL FROM VCCC NO. 73 OF 1985)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Tang JA in Court

Date of Hearing : 17 March 2006

Date of Judgment : 6 September 2006

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J U D G M E N T

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Stock JA:

1.This is an application for leave to appeal against conviction for an offence of possession of a dangerous drug for the purpose of unlawful trafficking.  The conviction, on 31 May 2005, was after trial before Judge Sweeney in the District Court.  By the time of trial, the offence was stale because after its commission the applicant fled to the USA and was subsequently extradited to Hong Kong.

2.The charge alleged that on 23 February 1985 at Sharp Street East outside Spaghetti House, Wanchai, the applicant had in his possession a dangerous drug, namely 88.96 g of a mixture containing 17.61 g of salts of esters of morphine, for the purpose of unlawful trafficking.

3.The facts were admitted, and they were as follows:

“On 23 February 1985, PW1-4 were patrolling in Wanchai area in 2 groups where PW1-2 spotted a male (later known to be the Defendant), who was walking towards them, suddenly turned round and fled.  PW1 and PW2 gave chase and during the course, they saw the Defendant threw something underneath his jacket onto the pavement and continued to flee.  The shouting and yelling alerted PW3-4 and they guarded the packets disposed by the Defendant and it was revealed to be 10 packets of suspected dangerous drug.  On the other hand, whilst PW1-2 [were] chasing the Defendant, an off-duty police officer (PW5), who happened to be in the vicinity, was also alerted, and they eventually intercepted the Defendant and he was arrested.  Under caution, the Defendant remained silent.”

4.At trial, the applicant gave no evidence.  He offered to plead guilty to possession of the dangerous drugs but denied possession for the purpose of trafficking.  The judge noted the admitted facts and that the defence case relied on a particular passage from eal judgment in Chan Chuen-ho v HKSAR (1999) 2 HKCFAR 198, where, at p 203, Ching PJ said :

“The circumstantial evidence against the appellant was strong.  He was in possession of a large quantity of drugs, but it was not so large as to be incompatible for being for his own use.  They were packaged in a way suitable for sale, but they could have been purchased by him in that form.  They were found on him in the street in the very small hours of the morning.  They were found on him after he had emerged from a building in which he had rented premises.  Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises.  There was no evidence that he was on his way home to Shatin.  His own evidence was to the contrary.  Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking.  There was no evidence that he was an addict or a user of the drugs, but that in the circumstances is a neutral factor.  It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking.  I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking.  Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.”  (My emphasis).

5.Having noted those passages the trial judge went on:

“7.   Every case is of course decided on its own facts.  The report of the judgment in Chan Chuen Ho is silent as to what evidence there was of that defendant’s personal drug use.  In the present case, the defendant was found on the street with 10 packets of dangerous drugs.  The quantity involved is far larger than that which drug addicts normally buy for their own consumption.  Indeed, the fact that there was a prima facie case for possession for the purpose of trafficking was not contested by the defence at the end of the prosecution case today.  The defendant has elected not to testify.  This means that he has not told the court, for example :

8.    (1)   whether or not he was a drug addict at that time;

(2)    if he was, how much heroin he consumed per day at that time;

(3)   how much he earned at that time;

(4)   how much he had paid for those 10 packets of drugs; or

(5)   how long that amount of drugs would have taken him to consume?”

9. I find the prosecution case proved beyond a reasonable doubt.  I therefore convict him as charged.”

6.One of the grounds of appeal was that the judge had, by his comments, placed the burden upon the applicant to prove that he did not possess the drugs for trafficking.  This ground was not pursued as such, the argument proceeding on the assumption that the judge was doing no more than stating the fact that there was simply no evidence before him that the applicant was himself a user of drugs.  Mr Cahill, for the applicant, restricted himself to the contention that the conclusion at which the judge arrived was not the only reasonable inference to draw from the facts.  He argued, first, that there was no evidence before the court as to the quantities normally bought by drug addicts for their own consumption and, secondly, that in any event the quantity of drugs in the applicant’s possession was commensurate with the amount of drugs that an addict might use for himself.  He conceded that it was unnecessary for the court to receive evidence of such quantities, for such quantities were established by the judgment of the Court of Appeal in The Queen v Sin Yau-ming [1992] 1 HKCLR 127.  The point was made in The Queen v Cheung Ping-chiu (1993) Cr App No. 162, 20 January 1994, unreported, that:

“ … there was no need for any evidence [as to the daily consumption of a heroin addict to all the street value of the seized drugs].  The evidence that was before this court in R v Sin Yau-ming [1992] 1 HKCLR 127 was that the average consumption of a heroin addict is between 0.25 and 0.7 of a gramme of pure heroin daily.  It is therefore not incumbent on the prosecution to call evidence to that effect in every case of possession for the purpose of unlawful trafficking in which a possible verdict is one of simple possession.”

7.Mr Saw SC, for the respondent, conceded that the judge was not entitled to make a finding, in the absence of direct evidence, of which there was none before him, of the amounts that drug addicts normally purchase.  But, says Mr Saw, it is evident that, looked at as a whole and in particular in the context of the judge’s express reference to Chan Chuen-ho, the reasons for verdict made clear that the judge was in fact addressing the daily consumption of addicts.  What Mr Saw then states is that every case does indeed turn upon its own facts, that the Court of Final Appeal in Chan Chuen-ho was concerned whether it was a case appropriate for the application of a proviso after a jury trial in the face a clear misdirection as to law by the trial judge, and that there is clear authority for the proposition that in the absence of any evidence that the person in possession of drugs is an addict, it is open to the tribunal of fact to conclude, assuming a common sense approach to the quantity involved, that possession was for the purpose of trafficking.  For this proposition he turns in particular to The Queen v Chong Kin- cheong Cr App 196 of 1995, 8 August 1995, unreported.  In that case, the applicant admitted possession of the drug; had been seen to act furtively; and was found in the street in possession of 15.65 g of heroin contained in 100 plastic straws all of a similar size with both ends of each straw heat-sealed.  The judge said that from the quantity involved “and in particular the manner of packaging”, he was satisfied that the applicant did not have the entire quantity for his own consumption but intended to pass on to others, and convicted him of trafficking in those drugs.  It was submitted before the Court of Appeal that before such a conviction could be returned it was necessary for the judge to find that the only possible an irresistible inference was that the drugs were for trafficking.  The Court of Appeal there said that:

“As was his right, the applicant chose not to give evidence.  This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge's task when considering the facts put before him to imagine possible defences of which there is no evidence.  By the same token it is not his task – nor that of a jury – to speculate upon the absence of possible evidence.  His duty was to try the case just on the evidence before him.

Here there is no evidence that the applicant is an addict.  He was found in the street with a considerable quantity of drugs, divided into at least a hundred doses, ready and conveniently packaged in quantities of 10 separate sales.  Absent him being an addict he must have been trafficking.”

8.Mr Saw asserts that the same principle is to be applied to the present case and that, accordingly, in the absence of any evidence that the applicant is an addict, the judge was entitled to come to the conclusion that he reached.

9.I do not think that the matter is that straightforward.  I do not read the court in Chong Kin-cheong as suggesting that such a conclusion is always permissible in the absence of evidence of addiction.  If that was its conclusion it is one that stands, in my view, contrary to the statement of Ching PJ in the later case, Chan Chuen-ho.  The logic of his statement that ‘.. it is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking’ is, in my respectful opinion, unassailable.  There was in that case too no evidence of addiction, and where Judge Sweeney relied on the fact that Chan Chuen Ho was “silent as to what evidence there was of that defendant’s personal drug use” he erred, because there was clearly in that case no evidence at all of Chan’s drug use because his case was that, as to possession itself, he had been framed. 

10.The point was made in Sin Yau-ming at p 147 that:

“It is notorious that drug habits, and indeed drug consumption, fluctuate.  They are both affected by the availability of supplies and the price demanded.  Addicts may well, to avoid being in constant danger of apprehension, buy their supplies in bulk in Po Chai pill phials or a quantity of straw packets.”

It cannot possibly be that in the absence of evidence of addiction, a court is always, or inevitably, driven to conclude that the possession proved was for the purpose of trafficking.  There is no such presumption.  Where someone is found in possession of a quantity of drugs, the mere fact of possession, without more, cannot of itself lead to a conclusion that possession must be for the purpose of trafficking.  Fact finders know and the law recognises that some people merely possess drugs for their own use, others for trafficking.  Which it is, depends on the facts.  There will of course be cases where the circumstances are such as in themselves to carry all the indicia of trafficking, in which event in the absence of any contrary evidence, that will be the inevitable conclusion.  

11.Where the Court in Chong Kin-cheong said that: “Absent him being an addict he must have been trafficking” the Court must in my judgment be taken to have been saying that on the facts of that case, absent him being an addict he must have been trafficking.  It is not surprising that on the facts of Chong Kin-cheong, the absence of evidence of addiction led inevitably to a conclusion of trafficking.  In that case, there were a hundred separate straws and the manner of packaging was highly suggestive of trafficking.  Neither those numbers nor the packaging is a feature of this case.  The facts in this case which are said to point irretrievably towards trafficking are the mere fact of presence in the street and the quantity.  Presence in the street is not sufficient of itself.  As for quantity, taking the figures to which reference is made in Sin Yau-ming, the quantity is not necessarily inconsistent with the amount someone might purchase for his own use.

12.Similarly distinctions can be made between this case and others to which our attention was drawn.  In Chan Chuen-ho itself, the amount in possession was substantially greater and the applicant was seen emerging from a building in which he lived, rather than going home and, furthermore, he had on him a substantial amount of cash.  In Cheung Ping-chiu above, the applicant's account was rejected and the amount significantly greater than in this case and the daily consumption, which he was driven to suggest, was inconsistent with the daily consumption of an addict.  In Chan Kwok-kei Cr App No 324 of 1995, which relied for its conclusion upon the reasoning in Chong Kin-cheong, the applicant was again in possession of a quantity significantly greater than in this case and there were also found at his home over 500 transparent bags.  There were none of these indicia in the present case and logic does not, in my judgment, force one to the conclusion that possession of these drugs in this case could only have been for the purpose of trafficking.

13.The question which it was incumbent upon the trial judge to address in this case was whether the facts before him led to the inevitable conclusion of possession for the purpose of trafficking, granted that there was no evidence of addiction.  The facts did not carry the indicia of trafficking that cases such as Chong Kin-cheong and Cheung Ping-chiu carried.  All there was was a quantity of drugs in ten packets, the quantity not being outwith that which a consumer might have in his possession.  The judge did not rely on packaging for his conclusion but on the amount an addict might normally buy, as to which fact there was no evidence.  He relied on that unsupported basis plus the absence of any evidence of addiction, and the basis upon which he sought to distinguish the case before him from Chan Chuen-ho was an erroneous basis. 

14.I would therefore grant leave to appeal, treat the hearing of the application as the appeal, quash the conviction, and substitute a conviction for possession of dangerous drugs.

15.I have had the advantage, since writing the passages above, of reading the draft judgments of the Vice President and of Tang JA.  In so as far as it is suggested (paragraph 22 below) that I have attached some special significance to the words or Ching PJ in Chan Chuen Ho, I ought to make clear that I have not pointed to them as raising or revealing some new truth, but rather a stating the obvious, which is that the mere fact of possession of drugs in a street is not of itself conclusive of trafficking.  The point is that the question in this case, as in all criminal cases, is whether the prosecution has proved its case beyond reasonable doubt and in the context of all cases of this type whether the facts proved draw one inevitably to the conclusion that possession was not for consumption but for trafficking.  That essential point emerges from paragraph 43 below where it is said that: “Here is a case where the drugs were either in the possession of the applicant for his own consumption or that he had possession of them for the purpose of trafficking.”  That being so, the question is not one of ‘conjuring up lines of defence’ (see paragraph 26 below) but is rather this: what is it on the facts of this case that drives one to the inevitable conclusion that the applicant had them for trafficking, recognising that the burden of so proving beyond reasonable doubt remains ever on the prosecution?  It is said that it is the quantity, but I do not accept that that quantity is inconsistent with the amount that an addict would buy; nor was there evidence to that effect, and that the judge was not entitled to make that finding is a matter conceded by the respondent.  It is said that it is the number of packets, yet it does not appear to me to be the matter upon which the judge relied or to be a number inconsistent with the number a self-consuming purchaser might buy.  It is said that the applicant did not give evidence and in this regard reliance is placed upon the judgment of Lord Hoffman in Li Defan.  The application of the passages relied upon is fact sensitive and it is not a recipe for undermining the fundamental function of the prosecution to prove its case beyond reasonable doubt, for ‘... even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.’: Weissensteiner v The Queen (1993) 178 CLR 217, 227-229, referred to at page 332 of Li Defan.

Stuart-Moore, VP:

16.I am regrettably unable to agree with the conclusion reached by Stock JA.

17.The facts of the case were admitted by the defence in their entirety.  The applicant threw away ten packets of dangerous drugs whilst he was being chased by police along a street in Wanchai.  Analysis of the drugs revealed a mixture weighing 88.96 grammes containing 17.61 grammes of salts of esters of morphine.  The applicant’s trial was delayed by over twenty years because he absconded on bail.

18.The prosecution rejected the applicant’s offer to plead guilty to simple possession and contended that an inference should be drawn from all the circumstances, with particular regard to the quantity of the dangerous drugs, that he was trafficking.  This stance was taken against a background where the applicant had maintained his right to keep silent.  Furthermore, at trial, he elected not to give evidence.

19.The defence case amounted to a submission, based on parts of Ching PJ’s judgment in Chan Chuen-ho v HKSAR [1999] 2 HKCFAR 198, that the circumstantial evidence against the applicant was insufficient to establish an irresistible inference of trafficking.  This submission was effectively repeated in these proceedings under a ground of appeal which alleged that there was insufficient evidence to prove that the applicant was in possession of the drugs for the purpose of trafficking.

20.In Chan Chuen-ho, the trial judge had given what plainly amounted to an erroneous direction to the jury.  Having dealt correctly with the presumptions in regard to possession and knowledge under section 47(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, the judge in that case continued his summing up by leaving the impression that the presumptions also applied to trafficking.  Ching PJ said:

“6.   There is, however, now no statutory presumption as to the intention to traffick.  Having correctly directed the jury on possession and on the presumptions as to possession, the trial judge then gave the direction of which complaint is made.  He said,

‘Failure to rebut the presumptions will result in the accused’s conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs, the subject of the two counts, and that his possession was for the purpose of trafficking in them.’

Almost immediately afterwards he said,

‘Additionally, the prosecution has put a number of matters before you, each of which it invites you to accept as having been proved ….  When these various matters, if established, are looked at together, the only reasonable inference to be drawn from them is that he was in possession of the two lots of drugs in order to traffick them.’” (Emphasis added)

21.The appeal in Chan Chuen-ho was then largely concerned with whether, as the Court of Appeal had decided, the proviso should be applied.  It was entirely within this context that the Court of Final Appeal went on to analyse the strength of the evidence against the appellant in the terms set out in Stock JA’s judgment (at paragraph 4 above).  This resulted in the conclusion that the Court of Appeal had wrongly decided that a properly directed jury would inevitably have convicted of trafficking given that there remained a possibility that the jury may have convicted of simple possession.  “By the slimmest of margins”, the proviso was not applied.

22.In my opinion, Stock JA has, with respect, attached a wider significance to the words of Ching PJ in Chan Chuen-ho than either Ching PJ or the other members of Court of Final Appeal intended.  The question which was being addressed in that court (at page 203I) was whether “there would have inevitably been a conviction for trafficking” leaving aside the trial judge’s misdirection on trafficking.  In the present case, we are dealing with a different question altogether, namely, whether Judge Sweeney was entitled, on the evidence before him, to convict of trafficking.

23.On the face of the evidence, there was plainly a case to answer on the charge of trafficking.  The applicant had been caught in the act of discarding ten packets of dangerous drugs.  Having regard to the average consumption of a heroin addict which is helpfully set out in The Queen v Cheung Ping-chiu CACC 162/1993 (unreported), the quantity of drugs contained within those packets was sufficient to provide a consumer with twenty-five or more days supply.  In that case, in regard to a complaint that the prosecution had not adduced evidence to prove a heroin addict’s daily consumption, Macdougall VP (at page 3) said:

“In our view there was no need for any evidence of that nature.  The evidence that was before this court in R. v. Sin Yau-ming [1992] 1 HKCLR 127 was that the average consumption of a heroin addict is between 0.25 and 0.7 of a gramme of pure heroin daily.  It is therefore not incumbent on the prosecution to call evidence to that effect in every case of possession for the purpose of unlawful trafficking in which a possible verdict is one of simple possession.”

It would have been most surprising if this highly experienced judge was not cognisant of the decision in Cheung Ping-chiu or of subsequent judgments to the same effect enabling him to take judicial knowledge of a heroin addict’s average rate of consumption.  The comment that “the quantity involved is far larger than that which drug addicts buy for their own consumption”, seen in this light, really amounts to a statement of the obvious.

24.There was, however, no evidence of any kind to suggest that the applicant was himself a consumer of dangerous drugs.  For the judge to have convicted of simple possession, he would have needed to take an approach which not only conflicted with a perfectly reasonable prima facie case of trafficking but also involved engaging in wholly unsubstantiated guesswork that the applicant was or may have been a heroin addict who needed this large quantity for self-consumption.  Trafficking, on the other hand, was a natural and unavoidable inference on the facts of this particular case once it had been established that the applicant was in a public street, that the drugs were separately wrapped inside ten packets and that the quantity, bearing in mind the normal rate of consumption on the part of users, was relatively substantial.

25.Whilst Lord Hoffmann NPJ’s judgment in Li Defan and Anor v HKSAR [2002] 5 HKCFAR 320 was not specifically relied upon by Judge Sweeney when making the comments set out at paragraph 5 (above), the sentiments expressed in Weissensteiner v The Queen [1993] 178 CLR 217 at 227-229 which Lord Hoffmann cited with approval (at pages 332-333) have some significance in the present circumstances.  The citation reads:

“… it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.  In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case.  The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence.  Ordinarily it is appropriate for the trial judge to warn the jury accordingly.

Not every case calls for explanation or contradiction in the form of evidence from the accused.  There may be no facts peculiarly within the accused’s knowledge.  Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.  Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.

… There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.  In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence.

The failure of the accused to give evidence is not of itself evidence.  It is not an admission of guilt by conduct.  It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof … But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission.  The accused is entitled to take that course and it is not evidence of either guilt or innocence.  That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight.  It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.  The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.” (Emphasis added)

26.The reason for the applicant’s admitted possession of dangerous drugs in the present case was something peculiarly within his knowledge.  If there had been any hesitation about drawing an inference that he was trafficking, and the trial judge expressed none, the absence of any explanation from the applicant was in my opinion a circumstance, adopting the phraseology used in Weissensteiner, which could be taken into account for the purpose of evaluating the evidence.  In any event, it was not incumbent on the trial judge to attempt to conjure up possible lines of defence where no foundation existed for so doing.  The prosecution had been put to strict proof of its allegation of trafficking and I would have found it most surprising if the judge had not convicted.

27.I would dismiss the application.

Tang JA:

28.On 23 February 1985, the applicant was arrested in Wanchai.  He was found in possession of 10 packets containing 88.96 grammes of a mixture containing 17.61 grammes of salts of esters of morphine.

29.He absconded whilst on bail.  He was extradited back to Hong Kong from the USA in December 2004.

30.On 31 May 2005, he was convicted after trial by Judge Sweeney of the offence of possession of dangerous drugs for the purpose of trafficking.

31.Mr Peter Cahill, appearing for the applicant, submitted that on the authority of Chan Chuen Ho v HKSAR [1999] 2 HKCFAR 198, the conviction should be set aside.  He submitted that the applicant was convicted on the quantity of drugs alone.

32.Chan Chuen Ho is a decision of the Court of Final Appeal, Ching PJ, in whose judgment the other members of the court concurred, said:

“The circumstantial evidence against the appellant was strong.  He was in possession of a large quantity of drugs, but it was not so large as to be incompatible for being for his own use.  They were packaged in a way suitable for sale, but they could have been purchased by him in that form.  They were found on him in the street in the very small hours of the morning.  They were found on him after he had emerged from a building in which he had rented premises.  Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises.  There was no evidence that he was on his way home to Shatin.  His own evidence was to the contrary.  Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking.  There was no evidence that he was an addict or a user of the drugs, but that in the circumstances is a neutral factor.  It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking.  I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking.  Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.”  [My Emphasis]

33.However, the words emphasized were said in the context of the application of the proviso as the sentences following made clear.

34.In no way do those words undermine the importance of the amount of drugs involved.  Moreover, I do not believe those words could be taken to mean that in the absence of other evidence no person could be convicted of trafficking whatever the amount of drugs found on him.  Whether a conviction is possible must depend on all the circumstances.  The amount of drugs involved is an important circumstance.  Depending on the amount, one might or might not be able to draw the necessary inference.  The fact that the person was arrested in a public place with a large quantity of drugs is an important circumstance.  It is highly improbable that a drug addict would carry a large quantity of drugs on his person in a public place if they were meant for his own consumption, unless e.g. he had just bought them and was taking them home.

35.The question before the judge was whether on the evidence before him, he was satisfied that the applicant possessed the drugs for the purpose of trafficking.

36.It is accepted that the court could take judicial notice of the fact that the average consumption of a heroin addict was between 0.25 and 0.7 of a gramme of heroin per day (See R v Cheung Ping Chiu, Cr App No. 162 of 1993, unreported, 20 January 1994).

37.That being the case, the applicant had in his possession between 25 and 70 days supply of heroin when he was arrested.

38.In R v Chan Kwok Kei, Cr App No. 324 of 1995, unreported, 1 December 1995, the Court of Appeal, which included Litton VP and Ching JA (as they then were), said, in a case where 35.19 grammes of heroin were involved:

“However, 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 gm 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.’

In our judgment, the only basis on which the Applicant could have been in possession of heroin of this quantity was because he was trafficking in it, and we draw some comfort for that view from the evidence, tenuous though it was, of the link between the Applicant and the other small transparent bags in the flat.”

39.It is clear that it is permissible for the court to infer from the quantity involved that the drugs could not have been in a person’s possession for his own consumption.

40.Here, objection was taken to the fact that the judge said:

“The quantity involved is far larger than that which drug addicts would normally buy for their own consumption.”

41.It is said that it is objectionable because there was no evidence of the amount of drugs that drug addicts normally purchase.

42.I do not regard this as an error.

43.Here is a case where the drugs were either in the possession of the applicant for his own consumption or that he had possession of them for the purpose of trafficking.  In the absence of any evidence to the contrary, the irresistible inference is that the drugs had been purchased by the applicant who was found to be in possession of them.

44.That being the case, I see no relevant difference between saying a drug addict normally would not possess such a quantity for his own consumption, and saying a drug addict normally would not buy such a quantity for his own consumption.

45.The applicant had not given evidence.  He was entitled not to do so.

46.R v Chong Kin Cheong, Cr App No. 196 of 1995, unreported, 18 August 1995, where the applicant chose not to give evidence, this court said:

“… compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence.”

47.The applicant was found with this large quantity of drugs in a public place.  Unless he had just purchased the 10 packets of drugs for his own consumption, and, for example, was on his way home, the irresistible inference is that he had possession of these drugs for the purpose of trafficking.  There was no evidence.  It was not for the judge to imagine possible defences of which there was no evidence.

48.For these reasons and the reasons given by the Vice President, I would dismiss the application for leave against conviction.

Stuart-Moore, VP:

49.By a majority, this application is dismissed.

Mr D G Saw, SC, DDPP and Ms Grace Chan, SGC of the Department of Justice for the Respondent

Mr Peter Cahill instructed by Messrs Lunning and Chan, assigned by the Director of Legal Aid, for the Applicant