HKSAR v. Huang Miaoli and Another

[English Translation – 英譯本]
CACC 167/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 167 OF 2006

(ON APPEAL FROM DCCC NO. 1283 OF 2005)

_________________

BETWEEN

_________________

Before: Hon Tang VP, Cheung JA and Fung J in Court

Date of Hearing: 20 April 2007

Date of Judgment: 20 April 2007

Date of Reasons for Judgment: 4 May 2007

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

Application for leave to appeal

1.The 1^st applicant in the present case has made the following applications:

(1) Application for leave to appeal out of time against conviction in respect of Charge 1;

(2) Application for leave to appeal against conviction in respect of Charge 2; and

(3) Application for leave to appeal out of time against sentence in respect of both charges.

2.The 2^nd applicant in this case has applied for leave to appeal against the sentence of 3 years and 10 months’ imprisonment in respect of Charge 2.

3.Following the hearing on 20 April 2007, we dismissed all the applications of the 1^st applicant. We allowed the 2^nd applicant’s application and, treating the hearing of the application as the appeal, varied the sentence of 3 years and 10 months’ imprisonment to one of 3 years and 6 months’ imprisonment. Our reasons are as follows.

Charges

4.The 1^st applicant was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. Charge 1 alleged that the 1^st applicant trafficked in 1.06 grammes of heroin hydrochloride; and Charge 2 alleged that the 1^st and 2^nd applicants trafficked in 9.13 grammes of heroin hydrochloride. The 2^nd applicant was also charged with one count of trafficking in a dangerous drug (i.e. Charge 2).

Prosecution case

5.The facts show that on 13 October 2005 a team of police officers stopped the 1^st applicant outside the entrance on the ground floor of No. 73 Lion Rock Road, Kowloon City (“the building”). At that time she had just emerged from the building. The police took her to the mezzanine floor of the building for investigation. She told the police that she and her uncle of the same clan, Lau Ngo Ming (the 2^nd applicant), lived on the 2^nd floor of the building. The police found from her handbag 13 packets of dangerous drug, which were subsequently verified to be 1.06 grammes of heroin hydrochloride (the subject of Charge 1). Under caution, the 1^st applicant admitted to possessing the 13 packets and claimed that the dangerous drug was for her own consumption. Thereafter, the police further found from her handbag three keys, which were respectively to the main entrance of the building, the entrance of the flat on the 2^nd floor and the door of Room D (“the room”) in the flat.

6.The police took the 1^st applicant to the 2^nd floor and opened the main door of the flat on that floor with the key seized. The flat consisted of a number of rooms. The 1^st applicant indicated to the police that she lived in one of the rooms. The police then opened the door of the room with another seized key and found the 2^nd applicant inside. The 1^st applicant told the police that the 2^nd applicant was her uncle, Lau Ngo Ming. The police searched the room and found 60 packets of dangerous drug, comprising 22 white packets, 22 red packets and 16 packets in white plastic wrapping. This batch of dangerous drug was later verified to be 9.13 grammes of heroin hydrochloride (the subject of Charge 2). Under caution, the 2^nd applicant said, “Ah Sir, the powders in the room were mine. Give me a chance, please.” Apart from the dangerous drug, the police also found from the room an electronic scale, two bundles of plastic sheets, red and white in colour respectively, and a tenancy agreement. The 2^nd applicant was a tenant of the room.

Defence case

7.Both applicants pleaded not guilty. The 1^st applicant elected to give evidence at trial. She was a Mainlander and frequently came to Hong Kong to visit her relatives, including her mother and husband, on the strength of two-way permits. She stayed at her husband’s residence whenever she came here. She admitted that she was in possession of the keys at the time of her arrest because she frequently went to the room to clean it up and tidy it for the 2^nd applicant. She denied living in the room. She admitted that she had taken dangerous drug in the room before the police stopped her for a check, and that the 13 packets of dangerous drug found on her were given to her by the 2^nd applicant as a reward for cleaning up the room for him. She denied having told the police that she lived in the room with the 2^nd applicant. She also denied that the dangerous drug and other items found in the room belonged to her. She said that she went to the room to do the cleanup once every two to three days. Her husband earned a monthly income of tens of thousands of dollars and gave her on average $5,000 each month. She admitted that the $5,000 that her husband gave her each month was insufficient to cover her expenses, so she cleaned up the room for the 2^nd applicant in return for dangerous drug. She admitted that she knew the items found in the room were for the purpose of packaging dangerous drug, but denied assisting the 2^nd applicant in packaging dangerous drug. She said her husband was not a drug addict and did not know that she was.

8.The 2^nd applicant said that the dangerous drug found in the room was for his own consumption. He admitted to trafficking in a dangerous drug but alleged that the quantity involved was confined to the 13 packets of dangerous drug found on the 1^st applicant by the police.

The 1^st applicant’s convictions

9.After trial in the District Court before Deputy Judge Rickie Chan, the 1^st applicant was convicted of both charges. Deputy Judge Chan rejected her defence in respect of Charge 1 that the 13 packets of dangerous drug were for her own consumption. He found that she was at the material time delivering the drug to someone. He had doubts about her bringing such a large quantity of dangerous drug home as she claimed that her husband was not a drug addict and that she did not want him to know she took drug.

10.As regards Charge 2, Deputy Judge Chan was of the view that, judging from the articles found in the room and the layout, the room was a small-scale drug packaging centre. He also found that the packaging appearance of the 13 packets of dangerous drug found on the 1^st applicant was very similar to that of the dangerous drug found in the room. He concluded that the 1^st applicant was one of the occupants of the room and had participated in the illegal drug trafficking activities in the room.

Sentence

11.On Charge 1, Deputy Judge Chan adopted a starting point of 18 months’ imprisonment and, on account of the 1^st applicant’s plea to possession of the dangerous drug, reduced the term by 3 months, resulting in 15 months’ imprisonment. On Charge 2, Deputy Judge Chan adopted a starting point of 4 years’ imprisonment and, noting that she was a first-time offender and taking into account other mitigating factors, reduced the term by 6 months, resulting in 3½ years’ imprisonment. The two sentences were to run concurrently, making a total sentence of 3½ years’ imprisonment.

The 2^nd applicant’s conviction and sentence

12.The 2^nd applicant admitted to trafficking in a dangerous drug but disputed the quantity of the dangerous drug involved. Deputy Judge Chan therefore held an inquiry into the relevant facts, after which he ruled that the 2^nd applicant had illegally trafficked in a dangerous drug the quantity of which was as specified in Charge 2 rather than the 13 packets of drugs found on the 1^st applicant. He adopted 4½ years’ imprisonment as the starting point and, taking into account the 2^nd applicant’s early plea to possession of the dangerous drug found in the room, reduced the term by 8 months, resulting in 3 years and 10 months’ imprisonment.

The 1^st applicant’s applications

13.The 1^st applicant applied for leave to appeal against conviction in respect of Charge 2 and she was represented by Mr. Kenneth Ho of Counsel. Mr. Ho also applied on her behalf for leave to appeal out of time against her conviction in respect of Charge 1. She represented herself in her application for leave to appeal out of time against sentence in respect of both charges.

Grounds of appeal

14.The grounds of appeal against convictions as advanced by the 1^st applicant can be summarized as follows:

First, Deputy Judge Chan had erroneously dealt with the burden of proof.

Second, Deputy Judge Chan had failed to give due weight to the 1^st applicant’s good character.

Third, Deputy Judge Chan had failed to analyze the facts of the case appropriately.

Fourth, the inference drawn by Deputy Judge Chan was not the only irresistible inference.

Charge 1: overall evidence

15.The first, third and fourth grounds of appeal stated above can be dealt with together. In considering whether the trial judge had erred in the burden of proof, analysis of facts and the drawing of inference, we must first of all consider the evidence of the case as a whole. A large quantity of dangerous drug was found to be stored in the room. The judge took the view that the room was in fact a small-scale drug packaging centre. The 1^st applicant had just emerged from the building when she was arrested, and the packaging of the 13 packets of dangerous drug found on her was the same as that of the drugs stored in the room. In these circumstances, one of the reasonable inferences was that the 1^st applicant was at the material time in the course of delivering dangerous drug from the room to some other person(s).

16.The 1^st applicant’s defence on this charge, which the judge rejected, was that she was a drug addict and the 13 packets of drugs found on her were for her own consumption. In our view, the judge was justified in rejecting the defence. The greatest doubts harboured by the judge were about this: given the 1^st applicant’s husband was not a drug addict and she did not want him to know that she was, why did she have to take the risk of bringing 13 packets of dangerous drug home? In other words, she simply failed to give a reasonable explanation as to why she had to bring 13 packets of dangerous drug home for use. It was her evidence that she could go to the 2^nd applicant’s home to do the cleanup and take drug once every two to three days. If this was the case, why did she not go there every day to take drug but bring the drug home instead?

17.In our view, once the trial judge rejected the 1^st applicant’s defence, then on the facts the only reasonable inference that could be drawn was that the 1^st applicant was at the material time trafficking in the dangerous drug in question. We do not think that the trial judge had erred in any way regarding the burden of proof, analysis of evidence or the drawing of inference.

Good character

18.The legal principle concerning a defendant’s good character can be briefly stated as follows: a professional judge sitting alone without a jury is not required to state in his reasons for verdict that, in considering the defendant’s propensity to commit the offence and the credibility of his defence, due weight should be given to his clear record and hence good character. Unless there is indication that the trial judge failed to consider the defendant’s good character or give it due weight, the appellant court will act upon the basis that the trial judge had properly dealt with the issue, see R. v. Wong Chi Wei and another [1994] 1 HKCLR 94, R. v. Fok Tin Yau [1995] 1 HKCLR 351, HKSAR v. Li Yun Cheung CACC 307/1997. In the present case, Deputy Judge Chan had already stated that the 1^st applicant had a clear record, and it was unnecessary for him to go into the issue of good character.

19.With regard to Charge 1 against the 1^st applicant, the trial judge made a finding of fact in which we do not see any error. The application in respect of the conviction on Charge 1 is accordingly dismissed.

Charge 2

20.Turning to Charge 2, the trial judge considered that the 1^st applicant had knowledge of the dangerous drug being stored in the room. He accepted the police evidence that the 1^st applicant had said that she and the 2^nd applicant lived in the room together, which also showed that she had connection with the drug in the room. The judge did not accept that the drug found on the 1^st applicant were for her own consumption and therefore held that she was at the material time trafficking in the drug which had been processed in the room. In our view, the judge was entitled to find, on the basis of the said facts, that the 1^st applicant was also involved in the trafficking of the dangerous drug found in the room.

21.Mr. Ho for the 1^st applicant submitted that there was no evidence to show that she actually lived in the room, and he complained that the trial judge had not properly considered the relevant evidence when he made that particular finding. In our view, the crux of the present case was not whether the 1^st applicant lived in the room, but was the fact that the key found on her could open the door to the room and that she told the police that she lived there, from which it was inferred that she had a close connection with the drug in the room. We see nothing improper in the judge’s inference or finding. The 1^st applicant’s application in respect of the conviction on Charge 2 is accordingly dismissed.

The 1^st applicant’s sentence

22.The trial judge adopted a very lenient approach in sentencing the 1^st applicant. According to the sentencing guidelines in R. v. Lau Tak Ming [1990] 2 HKLRD 370, the 1^st applicant should have been sentenced to 4½ years’ imprisonment just for the 9.13 grammes of heroin hydrochloride in Charge 2. We therefore dismiss her application in respect of the sentences for both charges.

The 2^nd applicant’s application for leave to appeal against sentence

23.Although Mr. Kevin Chan, Counsel for the 2^nd applicant, had previously disputed the quantity of dangerous drug involved in Charge 2, he accepted at the hearing of the application that Charge 2 involved 9.13 grammes of heroin hydrochloride and that a term of 4½ years’ imprisonment was an appropriate sentence. His only complaint was that the discount of 15% given by the Deputy Judge was insufficient.

24.Although Deputy Judge Chan explained in his reasons for judgment that the inquiry conducted by him was with regard to the quantity of dangerous drug, the substantive issue in Charge 2 was that the 2^nd applicant had only admitted to possessing but not trafficking in the drug. That the 2^nd applicant admitted to possession of drug would serve to shorten the trial and this should in our view be encouraged. The court should give him a discount of more than 15%. In our judgment, the appropriate discount should be in the region of 20%, see HKSAR v. Tong Kim Ching, CACC 481/2001 and HKSAR v. Gurung Tikaram,CACC 532/2003. In our view, the appropriate sentence after discount should be 3 years and 6 months’ imprisonment. We therefore allow the 2^nd applicant’s application for leave to appeal against sentence and, treating the hearing of the application as the appeal, vary the sentence to one of 3 years and 6 months’ imprisonment.

Mr. Liu Yuen Ming, Senior Government Counsel, for the Respondent.

Mr. Kenneth Ho, instructed by YC Lee, Pang & Kwok, for the 1^st Applicant (re application for leave to appeal against conviction).

1^st Applicant in person (re application for leave to appeal against sentence).

Mr. Kevin Chan, assigned by the Director of Legal Aid, for the 2^nd Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor