HKSAR v. Chow Shuk Lan

CACC 447/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 447 OF 2007

(ON APPEAL FROM HCCC NO. 156 of  2007)

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Before: Hon Ma CJHC, Stuart-Moore VP and Wright J in Court

Date of Hearing: 17 February 2009

Date of Judgment: 17 February 2009

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J U D G M E N T

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Hon Wright  J giving the judgment of the Court:

1.The applicant was convicted on 23 November 2007 after trial before Deputy High Court Judge Longley and a jury of three counts: keeping a divan; trafficking in dangerous drugs, namely a quantity of midazolam and ketamine; and a further count of trafficking in dangerous drugs, namely methamphetamine hydrochloride, all the offences being contrary to specified sections of the Dangerous Drugs Ordinance, Cap. 134. The offences were alleged to have been committed on 22 March 2007 in premises known as Flat B, 6/F Diamond Building, 195-199 Nam Cheong Street, Kowloon.

2.The applicant was sentenced to serve a period of imprisonment of 1 year and 6 months, 9 months and 7 years respectively with an order that 6 months of the sentence on count 1 be served consecutively to the sentence on count 3 and the sentence on count 2 be served concurrently with those sentences.  She gave notice of her intention to apply for leave to appeal the convictions on all three counts.  Subsequently she abandoned the application in respect of count 1 and pursues that only in respect of counts 2 and 3.

3.There was a second accused person on the indictment, a male who was charged with assisting in the management of the divan and inhaling a dangerous drug in those premises.  He pleaded guilty to those two charges.  There was another charge against him but that related to an offence committed subsequently and in a different location.

4.It was an admitted fact that the applicant was the sole tenant of the premises, having signed a lease of two years duration on 3 December 2006.

5.On 22 March 2007 the police were keeping watch on the premises.  The applicant left the premises around 7:30 p.m..  At about 7:40 p.m. the police entered the flat, the door having been opened by the second accused when the bell was rung by a male, named Hon, seeking to gain access.  Inside, they found two persons, the second accused who immediately made off towards the kitchen and a female who was in the living area, seated at a table. 

6.The police searched the flat.  On the table in front of which and in a waste bin next to which the female had been sitting they found, amongst other things, two "water pipes" suitable for use in consuming dangerous drugs each of which contained methamphetamine, various pieces of tinfoil which contained methamphetamine, a plastic bag which contained 0.06 grammes of a crystalline solid containing methamphetamine hydrochloride (ice), an electronic scale which revealed traces of methamphetamine, cocaine and ketamine, four plastic bags containing traces of methamphetamine and two plastic straws containing traces of methamphetamine.  In the kitchen they found another water pipe as well as two packets which contained the methamphetamine hydrochloride (ice) which forms the subject matter of count 3 and a number of plastic straws which contained a further quantity of methamphetamine hydrochloride (ice).  In the applicant's bedroom they found a handbag in which they found the midazolam and ketamine which form the subject matter of count 2: on a dressing table they found a number of small re-sealable plastic bags. 

7.At approximately 9.15 p.m. a male, Lam Ting-pong, was stopped outside the premises.  On his person was found a bag which contained 1.3 grammes of ketamine.  When the applicant gave evidence she denied knowing this male. 

8.It was the prosecution evidence that the applicant had been seen in the street walking with and talking to another man, Lam Chun-keung, shortly before the two of them had entered Diamond Building together.  They had waited, together, in the ground floor lift lobby for lifts.  The applicant had taken a lift to the seventh floor where she was intercepted and, later, taken back to the premises.  Lam Chun-keung had taken a different lift to the sixth floor where he, too, had been intercepted.  He was searched and on his person was found 26.48 grammes of methamphetamine hydrochloride (ice).  He also had in his possession an address book which contained the applicant’s telephone number.  When the applicant gave evidence she admitted knowing this male: she explained the presence of her telephone number in his notebook as being due to the fact that he was interested in acquiring a puppy from her.

9.The applicant gave a very different version of events leading up to her apprehension when she testified.  From the jury's verdict it is plain that they accepted the evidence of the prosecution witnesses. In the light of the nature of the grounds of appeal and the abandonment by the applicant of her application for leave to appeal the conviction on count 1, there is no necessity to go further into the evidence save to note that at no stage did the applicant suggest that she was a user of danegrous drugs of any description.

10.It is clear from the way the matter proceeded, therefore, that the prosecution case was that the methamphetamine hydrochloride (ice) located in the kitchen and the midazolam and ketamine found in the applicant’s handbag were possessed by her for the purposes of unlawful trafficking, namely for sale to the patrons of her divan.

11.The respondent foreshadowed an application pursuant to s. 83V(1)(a) of the Criminal procedure ordinance, Cap. 221, to lead additional evidence at the hearing of the appeal. We considered, de bene esse, that which it was intended to adduce. It adds nothing.

12.The first and second grounds of appeal may conveniently be considered together.  When the judge explained to the jury that it was necessary for them to consider the evidence for and against the applicant on each charge separately, the judge had said:

"You might, for instance, find that the first defendant was managing flat 6B as a divan, but could not be sure that she was trafficking in dangerous drugs.  Equally, you might find that she was trafficking in the ice that was found in her bedroom, but could not be sure that she was trafficking in the drugs found in the kitchen." [emphasis supplied]

13.The complaint, which forms the basis of ground 2, is that no methamphetamine hydrochloride (ice) was found in the applicant's bedroom - it was midazolam and ketamine that was found there.  This was nothing more than a simple error on the part of the judge: it is regrettable that neither counsel invited this to his attention at any stage which would have afforded him the opportunity of rectifying it.

14.The judge was unable to complete his summing up on the day upon which it commenced.  This error occurred on that day.  It was made perfectly clear to the jury the following day when he reviewed the evidence as a whole that the dangerous drugs found in the applicant's bedroom were midazolam and ketamine.  The judge made specific references to these two substances as having been the substances found "... in the defendant's handbag in her bedroom". There was no further reference to ice being found in the bedroom.  The jury also had heard the testimony of the witnesses and, in our view, would not have been under any misapprehension as to what it was that had been found and where it had been located.

15.When commencing that portion of the summing up dealing with the facts, the judge said:

"The strip of tinfoil which he said that he saw [the female] holding was Exhibit 3, and you will see from page 2 of the Admitted Facts A that when that tinfoil was analysed it was found to contain traces of methamphetamine hydrochloride, which we have been referring to as "ice" and so I will perhaps use the term "ice" during the course of my summing up when I'm talking about methamphetamine hydrochloride."

16.We accept that there was an error by the judge in the sense that Exhibit 3 was found, upon analysis by the government chemist, to show traces of "a crystalline solid containing methamphetamine" as opposed to methamphetamine hydrochloride.  As has been seen, a number of the other exhibits also showed traces of methamphetamine, rather than methamphetamine hydrochloride.  The judge grouped together under the generic term "ice" all of those items as well as the packets which indeed contained methamphetamine hydrochloride.

17.Methamphetamine is a derivative of amphetamine.  Methamphetamine hydrochloride is one of the forms in which methamphetamine is found to exist and, in its crystalline form, is well-established over the years by evidence before the courts as being the form in which methamphetamine is ingested by users.  "Ice" is but one of the names applied to it, being the most commonly used in Hong Kong. 

18.A "dangerous drug" is defined in section 2 of the Dangerous Drugs Ordinance as meaning "any of the drugs or substances specified in Part I of the First Schedule".  Methamphetamine (or methylamphetamine) is included in paragraph 1(a) of the First Schedule.  Paragraph 4 of the First Schedule incorporates, as a dangerous drug, "Any salt of a substance for the time being specified in paragraph 1, 2 or 3".  Methamphetamine hydrochloride is a salt of methamphetamine.

19.Although the judge's phraseology may have been less than precise, the distinction is so subtle, the one substance being simply a salt of the other, that we are satisfied that was no misdirection nor was there any prejudice to the applicant by the encompassing use of the term "ice" in the context of this trial.

20.We do not accept that the jury either "must" or would have been misled by the way the judge used the word "ice".  That was but one facet of the evidence upon which they were entitled to rely to come to their conclusion.  Of particular significance in this connection, is the fact that in addition to the two bags of methamphetamine hydrochloride (ice) found in the kitchen, there was a bag found on the table being used by the female to consume drugs at the time when the police entered the premises which also contained methamphetamine hydrochloride (ice).  In our view, this rendered as overwhelming the inference that methamphetamine hydrochloride/ice was being consumed on the premises.

21.Similarly, grounds 3, 4 and 5 may conveniently be considered together.  Ground 3 asserted that the judge "erred " in admitting evidence that Lam Chun-keung had been carrying a very substantial quantity of ice when stopped on the 6^th floor of Diamond Building; ground 4 suggested that the judge failed to tell the jury that that evidence could only be used against the applicant if the jury were sure that she was aware that Lam Chun-keung was in possession of the ice and, further, that it had not been part of the prosecution case that ice was being consumed in the divan; ground 5 suggested that the judge erred when telling the jury that they could take into account the fact that Lam Tin-pong had been intercepted carrying ketamine outside the premises when considering what inferences they could draw.

22.Ground 3 ignored the fact that Lam Chun-keung’s possession of the ice outside the premises on 6^th floor was a fact admitted by the applicant pursuant to the provisions of section 65C of the Criminal Procedure Ordinance and duly signed by her trial counsel, who, we add, was not Mr McGowan who appears for her in this appeal.

23.The judge gave the jury the full standard direction concerning the drawing of inferences early in the summing up.  When dealing with the facts, he set out how the two male visitors to 6^th floor had been intercepted and what had been found on them.  He then said:

"Well, members of the jury, you will have to consider whether it was coincidence that these two men, Lam Tin-pong and Lam Chun-keung, were stopped on 6^th floor carrying drugs and you will also have to consider whether the evidence you heard about them gives you any assistance in deciding what was going on in flat 6B at the time.  The prosecution have pointed out to you that the ketamine Lam Tin-pong’s possession was in a clear plastic bag with a red stripe, P65, which was similar to those that were found on the dressing table beside the first defendant's bed.  The prosecution suggest that Lam Chun-keung was coming up to flat 6B in order to top up the supplies of ice for this divan..."

24.After reviewing the applicant's evidence, the judge went on to say:

"Does the fact that she was walking to the building with a man, talking to a man carrying ice worth over $12,000 and this man had her telephone number in his telephone book, assist you in determining her involvement in drug activity going on in her flat?  If you accept the evidence of the police that she was walking with Lam Chun-keung, might it be just a coincidence that she was walking and talking to him and entering the building at same time?  You may also wish to consider if there is any significance in the fact that she went to 7^th floor, where she did not live, rather than to 6^th floor, where she did, while Lam himself went to 6^th floor.  Do you think she might genuinely have been going to visit a friend on 7^th floor, or do you think she must have been going to 7^th floor so as not to appear to approach her own flat in the company of Lam Chun-keung?"

25.Before leaving the case against the applicant the judge dealt specifically with the inferences which the jury may consider drawing. In doing so said this in regard to Lam Tin-pong:

"Insofar as the second charge is concerned, the trafficking charge in relation to the drugs allegedly found in her handbag in her bedroom, again there is no direct admission from her that she was trafficking in those drugs, but you will have to ask yourselves whether the only reasonable inference is that those 47 midazolam tablets and the ketamine were in her possession for the purpose of trafficking.  Do you consider they might possibly have had nothing to do with her, or indeed that she might have had no intention of supplying them to others?  You may wish to consider whether there is any significance in the fact that ketamine was found in the liquid of the bottle found in the kitchen and on the scales allegedly found on the table in the living room, and that Lam Tin-pong was stopped outside the flat with a packet of ketamine in a clear plastic bag with a red stripe very similar, you may think, to that allegedly found in the first defendant's bedroom."

26.In our view, the judge's directions were both proper and complete.  These were all matters which formed part of the general evidence which the jury was entitled to take into account in deciding upon the inferences which it was able to draw against the applicant.  It was not necessary for the judge to have gone any further than he did in these directions or to qualify them.

27.The penultimate ground, ground 6, was to the effect that the judge had erred when he failed to tell the jury that they could not have regard to the second accused's pleas of guilty when considering the case against the applicant.  The fact of such pleas were included in the admitted facts.  The essential nature of the defence of the applicant was that she knew nothing about what had been going on in the premises; that when she had left the premises ten minutes before they had been raided the female and the second accused were there; that one or both of them must have been responsible for introducing the drugs and paraphernalia into the premises during her absence.  She testified concerning her relationship with the second accused and the fact that she allowed him access to the premises. 

28.In the light of that defence, even though it plainly was rejected by the jury, it was in her interests to have before the jury the fact that the second accused had pleaded guilty to the charges against him on the indictment.  For the judge then to have directed the jury in the manner now suggested on behalf of the applicant would have been counter-productive to the defence.

29.We find there is no substance in any of the grounds of appeal.  The application is refused.

30.We would add that even if the sentence in respect of the charge of keeping a divan is in line with current sentencing practice it appears to us, on the face of it, to be low. There is no appeal against sentence in this matter. It may well be that consideration should be given to providing guidelines for appropriate sentences when a suitable matter arises.

Mr John Reading, SC, DDPP, and Bobby Cheung PP, Department of Justice, for Respondent

Mr James HM McGowan, inst’d by M/s France Kong & Co for the Applicant