HKSAR v. Leung Ming Lun

CACC 8/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 8 OF 2008

(ON APPEAL FROM DCCC NO. 734 of 2007)

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Before:   Hon Stuart-Moore VP, Burrell and Saunders JJ

Date of Hearing: 7 August 2008

Date of Judgment: 7 August 2008

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J U D G M E N T

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

1.On 12 December 2007, the applicant was convicted in the District Court, after a trial before Judge P Li, of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The particulars of the charge were that the applicant, on 5 June 2007, at the lift lobby of the 6^th Floor of Man Wai Building, 10-16 Man Wai Street, Yau Ma Tei, Kowloon, unlawfully trafficked in:

“… 17.42 grammes of a solid containing 12.36 grammes of cocaine, 74 tablets containing 0.5 of a gramme of nimetazepam and 20.16 grammes of cannabis in herbal form.”

2.The applicant now seeks leave to appeal against his conviction on a single ground that it is unsafe or unsatisfactory as “the circumstantial evidence in question was insufficient to establish an only and irresistible inference of trafficking”.

3.There was no dispute at trial that the applicant was in physical possession of the drugs identified in the charge.  He was found with these at 9.27 pm when he was intercepted by the police as he left his flat.  All of the drugs were found in the applicant’s shoulder bag.  The cocaine was packaged in twenty-two small resealable plastic bags, the seventy-four tablets were individually wrapped in tinfoil and the herbal cannabis was in a single resealable bag.

4.The applicant immediately claimed to the police who had arrested him that the drugs were for his own consumption.  He went into greater detail when he was interviewed later.  He spoke of the tablets being used by him to make sleeping easier.  He claimed that he had bought the cocaine and cannabis two days earlier for “about $8,000” from someone he knew as ‘Ah Joe’ at ‘Hot Disco’ in the New World Centre.  He had not, he said, previously bought from him and he had no telephone number or other means of finding Ah Joe.

5.The applicant told the police that his reason for taking the drugs away from his flat on the night in question was to find “a safe place [to] store them away” but before he could think of a place he found himself under arrest.  The applicant, then aged twenty-eight, said that he had taken drugs since he was twenty years old and that, as he was unemployed at the time, he had used his savings to buy the drugs found on him.

6.The market price of these drugs was estimated at $12,524 for the cocaine, $2,516 for the tablets and $1,229 for the herbal cannabis, a grand total of $16,269 or just over double the amount the applicant claimed to have paid Ah Joe for the cocaine and the cannabis.

7.In the applicant’s account of matters given at trial, he added considerably to the version he had given to the police.  Whilst maintaining that the drugs were for his own consumption, he said that he was removing them from his flat at his girlfriend’s request that he should throw them away.  He said that in fact he was going to put them into his car for safe storage.  He maintained also that he was at that time earning $15,000 a month as an unlicensed hawker.

8.The applicant’s explanation was rejected by the judge who took the view that the only reasonable inference, on the evidence as a whole, was that the applicant was a trafficker in drugs.

9.Mr Bruce Tse, on the applicant’s behalf, made a number of points about the circumstantial evidence to suggest that there were, in effect, gaps in that evidence which left more than one inference open to be drawn from it.  He pointed out that the quantity of drugs was not such that it could properly be described as in excess of the amount a user might have in his possession.  Furthermore, if the fact that the cocaine was in resealable plastic bags was a matter of some significance, it was established that the police had found no evidence of packaging and weighing equipment at the applicant’s home.  These were points which led Mr Tse to place heavy reliance on what was stated in Chan Chuen-ho v HKSAR [1999] 2 HKCFAR 198 at 203, where Ching PJ observed:

“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.”

10.This passage states no more than the obvious and is another way of saying that every drugs case must be decided on its own facts.  In that case there had been a material misdirection and Ching PJ was then addressing whether, on the facts presented to the jury, the proviso could be applied.  All that he was saying is that it was not inevitable that the jury would have convicted of trafficking.  They might have convicted of simple possession.

11.In the present case, there was no misdirection.  The judge had given careful attention to the evidence and had made his assessment in the light of it.  Certain features of the evidence stood out amongst which were the numerous inconsistencies, when compared to the account given to the police, in the story the applicant gave at trial.  The applicant also contradicted himself on a number of occasions in the course of his evidence.  The judge rejected the applicant’s testimony.

12.On the more positive side, the judge took into account the value and variety of drugs in the applicant’s possession with which he was leaving his flat at night as well as the way they were packaged.

13.The judge was entirely justified in rejecting the applicant’s evidence and, in our opinion, the conviction is neither unsafe nor unsatisfactory.

14.Accordingly, the application is dismissed.

Mr Simon Tam, SPP, of the Department of Justice, for the Respondent.

Mr Bruce C H Tse, instructed by Messrs M K Lam & Co., for the Applicant.