HKSAR v. Ho Ka Kei

CACC 378/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 378 OF 2009

(ON APPEAL FROM DCCC NO. 447 OF 2009)

----------------------

----------------------

Before: Hon Stock VP, Yeung JA and Hartmann JA in Court

Date of Hearing: 7 July 2010

Date of Judgment: 7 July 2010

----------------------

J U D G M E N T

----------------------

Hon Stock VP (giving the judgment of the Court):

Introduction

1.The applicant pleaded not guilty in the District Court to a charge of trafficking in a dangerous drug.  It was alleged that on 5 November 2008 at a park near Hin Keng Estate, Shatin, he trafficked in 28.34 grammes of a powder containing 20.42 grammes of ketamine.

2.He was convicted on 16 October 2009 by Deputy District Judge Woodcock and sentenced to 4 years and 2 months’ imprisonment.

3.He now seeks leave to appeal against conviction.

The facts

4.The facts were not in issue.  On the night of 5 November 2008, a police officer was on duty in the vicinity of the Estate.  He said that he saw the applicant at about 10:35 p.m. looking around and thought his demeanour to be "a bit abnormal and looking nervous."  He watched him for one or two minutes and then, with another police officer, approached the applicant and told him that he suspected him of possessing dangerous drugs.  In the left front jacket pocket there was a transparent bag in which the ketamine was found.  The officer arrested him for possession of the drug and the applicant, in answer to a caution administered, said that the packet had "just now" been bought by him for $2,000 in Mong Kok and had been bought for self-consumption.

5.The officers then went to the applicant's living premises where a search was conducted but nothing incriminating or suspicious was discovered.

6.The applicant was subsequently interviewed.  He had employment, he said, as a vehicle washing technician.  He said that he had purchased the drugs outside the Sino Centre in Mong Kok, from somebody called Ho Chai whom he was unlikely to be able to find and whose telephone number he did not have, for he would purchase drugs from him only if he chanced across him.  He had purchased this particular packet of drugs after 8 p.m. that night.  He provided a description of Ho Chai.  He repeated that he had purchased the drugs for his own consumption and said that he had been consuming ketamine for about two to three months and consumed it two to three times a week and that it would take him about a month to consume the quantity found in the packet.  He had purchased that particular amount because he did not want to go out to buy frequently.

7.As to what he was doing in Shatin, he said that his friend had driven him there.  He provided his friend's name, Mak Chi Wai, and said that the vehicle in which they had been driven there was registered in Mak's name.  Mak had come to Shatin to find a friend.  During cross-examination of one of the police officers, it was conceded that the applicant had said that Mak had asked the applicant to keep a watch on the vehicle.  There was indeed a vehicle there and it was not disputed that it was registered in the name of Mak Chi Wai.  The vehicle was searched by the police but nothing incriminating or suspicious was found.  Whilst the police were at the scene, for about 20 minutes, Mak did not appear.

8.When the police first saw the applicant he was, as far as they recalled, standing about 4 to 5 metres from the vehicle.  It is relevant to note that the keys to the vehicle were not found on the applicant.

9.Evidence was given about the value of the drug and it was conceded, by that evidence, that the amount which the applicant said he had paid for 28.34 grammes of ketamine was approximately the wholesale price for that quantity.  The evidence was that it was common for "mid-level dealers" to sell ketamine in one ounce packets, one ounce being equivalent to 28.35 grammes.  “Lower-level dealers” buy one ounce packets but split them into small one gramme packets or less for resale and profit.

10.The applicant did not give evidence.

The issue

11.It follows that there was no issue as to the fact of possession of the dangerous drugs by the applicant.  The sole issue was whether the prosecution had proved beyond reasonable doubt that the purpose of his possession was that of trafficking.

The findings

12.The judge said that there was sufficient evidence from which to draw an irresistible inference that the applicant was trafficking in the ketamine found upon him.

13.The factors which the judge itemised as relevant to her findings were these:

“Firstly, the amount of dangerous drugs in one bag; secondly, the defendant says he bought the drugs two hours prior to his arrest in Shatin from a male in Mong Kok. The defendant lives in To Kwa Wan. Instead of taking the drugs home to avoid the risk of arrest or detection, he carried the ketamine on his person to accompany a friend to visit a friend.  Thirdly, whilst Mr Mak left to visit a friend, the defendant waited in a public area outside of the vehicle, instead of sitting inside the vehicle which would have made him less conspicuous. Lastly, he drew attention to himself by standing in a park alone at 10.30 at night looking around.  [The police officer] described him as looking nervous.  He put him under observation because of his demeanour and position.  [The officer's] instinct and 19 years experience as a police officer proved correct. I accepted his evidence entirely.”

14.The judge did not draw any inference adverse to the applicant on account of the fact that he had not provided evidence but she referred to Li Defan v HKSAR (2002) 5 HKCFAR 320, saying that she noted it.  In that case it was said that there were circumstances in which the failure of a defendant to give evidence - whilst not of itself an admission of guilt and incapable of filling in gaps in the prosecution case - may render it safer to draw an inference simply because the accused had not supported such hypothesis as may be consistent with innocence from facts which the fact-finder perceives to be within the knowledge of the accused.  Weissensteiner v The Queen (1993) 178 CLR 217, to which the Court referred at para 27 of Li Defan, warned however that “[silence] cannot be used as a make weight” and that even if there were facts peculiarly within an accused's knowledge the deficiencies in the prosecution case may be such as to account for his silence, relying on the burden of proof cast upon prosecution.

Analysis

15.Whilst the applicant did not give evidence, he did provide an explanation immediately upon arrest as well as later.  The statements he made were mixed, in the sense that they were partly inculpatory (possession of the drugs) and partly exculpatory (trafficking).  They had therefore to be taken into account and assessed, though remembering that the exculpatory parts carry less weight than the inculpatory parts.

16.At the end of the day, it was for the prosecution to prove the trafficking purpose of the possession beyond reasonable doubt and the question for us is whether the judge was correct in finding that possession for that purpose was the only reasonable inference open to her.  We are in as good a position as the trial judge to assess whether that was the only irresistible inference, because nothing in this case turns upon any issue of credibility.  It is purely a question of the inference or inferences available from proved and undisputed facts.

17.Whilst we accept at once that the proved facts give rise to a suspicion, perhaps a strong suspicion, that the applicant possessed these drugs for the purpose of trafficking, we do not think that that has been proved beyond reasonable doubt:

(1)  the quantity of drugs in the applicant's possession, upon which the judge relied, was not inconsistent with the story the applicant gave, namely, that he had just purchased them for his own consumption.  The quantity which he had on him was the same as would be used by some dealers but, it follows from the evidence, not inconsistent with a quantity purchased by those who buy from such dealers for self-consumption.  In other words, this is not one of those cases where the quantity of itself provides a clear indication of a trafficking purpose;

(2)  there was no suggestion that the place at which the applicant was found was an area to which traffickers or purchasers of drugs resorted;

(3)  nothing was found at the applicant's home to suggest that he was a trafficker: no packing equipment or plastic bags, for example;

(4)  such suspicion as might have been nursed that he had driven the nearby car himself to the park was undermined by the fact that the keys of that vehicle were not on him; and

(5)  he provided the full name of the person (Mak) with whom he said he had travelled to the place of his arrest as well as suggesting that the purpose of that trip was Mak's, not the applicant's.  There is no suggestion that any enquiries were made of Mak.

18.This is not to say that there were no suspicious circumstances.  We appreciate the point made by the judge that by accompanying a friend to visit a friend, the applicant was taking a risk of arrest or detection which would have been avoided had he taken the drugs, which he said he had just purchased, straight home; the point is valid and gives rise to some suspicion though not in itself overly powerful and there is also validity in the judge's point that the fact that the applicant waited outside the vehicle instead of inside added to the suspicious circumstances but, again, it is not a particularly powerful point.  Nor do we criticize the judge for taking into account police suggestions of some nervousness on the part of the applicant.  We accept too that a combination of circumstances can often lead to one inference.  But, all in all, and bearing in mind the factors to which we have earlier referred, we think it unsafe to conclude that the single irresistible inference to be drawn from the facts as a whole is that the applicant was in possession for the purpose of trafficking.

Conclusion

19.Accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal to the extent of setting aside the conviction of trafficking and substituting therefor a conviction for possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance Cap 134.

20.Pursuant to the requirement of section 54A of Dangerous Drugs Ordinance, Cap 134, we direct the preparation of a report on the suitability of the applicant for rehabilitation.  He is remanded in custody for that purpose.

Ms Polly Wan, SPP of the Department of Justice, for the Respondent

Mr Cheung Kam Wing, Adonis, instructed by Messrs C.T. Chan & Co., assigned by DLA, for the Applicant