HKSAR v. Chan Ko Ho, Hill

CACC404/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2009

(ON APPEAL FROM DCCC 769 OF 2009)

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BETWEEN

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Before : Hon Stock VP, McMahon and Lunn JJ in Court

Date of Hearing : 26 October 2010

Date of Judgment : 26 October 2010

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.The applicant was convicted, after a trial in the District Court before H.H. Judge Remedios of trafficking in 6.87 grammes of methamphetamine hydrochloride or “ice” and 0.51 grammes of ketamine (Charge 1).  He was also convicted on his own plea of possessing 0.87 grammes of ice (Charge 2).  He was sentenced in respect of Charge 1 to 5 years’ imprisonment, and in respect of Charge 2 to 8 months’ imprisonment.  One month of the sentence imposed in respect of the 2^nd charged offence was ordered to run consecutively to the sentence imposed in respect of the 1^st charged offence.  That resulted in a total sentence of 5 years 1 month’s imprisonment.  The applicant seeks leave to appeal his conviction for the offence of trafficking the subject of Charge 1 and also seeks leave to appeal the sentences imposed in respect of both offences.

Facts

2.The case presented against the applicant at trial in respect of the 1^st charge was that on 15 May 2009 at about 9:40 a.m., the applicant was intercepted by police officers in a street in Yaumatei and searched.  In his trousers pocket was found an envelope containing seven resealable plastic bags containing the drugs the subject of Charge 1.  When the applicant was arrested and cautioned he said that the drugs were for his own consumption.  

3.The applicant was subsequently released on police bail and three weeks later on 7 June 2009 was again intercepted and searched by police.  On this occasion the drug was again ice and was found in two packets in his clothing.  

4.The applicant’s case on the 1^st charge at trial did not dispute the prosecution evidence.  The applicant asserted that the drugs were for his own consumption and that he had driven from his home in Tai Po in a motor car he had borrowed from a friend which he parked at Parkes Street in Yaumatei before walking to Jordan MTR station to meet a drug trafficker with whom he was familiar.  The trafficker had earlier told him that he would give him a discount if he purchased the trafficker’s remaining supply of ice, that is, the 6.87 grammes of ice the subject of Charge 1.  The applicant agreed to purchase the drugs for $3,500 and received them in an envelope.  The trafficker, when he gave the applicant the envelope, said he had “thrown in” a free packet of ketamine.  The applicant was arrested as he arrived back at his motor vehicle in Parkes Street. 

Appeal against conviction

5.The unrepresented applicant in two written statements provides a number of grounds of appeal against his conviction on Charge 1.  They may be set out as follows :

(1)   the police failed to take photographs of the drugs;

(2)   at trial the prosecution produced the drugs the subject of the 1^st charge and the envelope in which they were provided as separate exhibits;

(3)   the judge wrongly used the retail cost of the drugs the subject of Charge 2 to determine the credibility of the applicant’s assertion that he had purchased the drugs the subject of Charge 1 for his own consumption; and

(4)   the judge did not take into account that the applicant, as a drug addict, did not necessarily behave rationally.

Grounds 1 and 2

6.These grounds can be dealt with together.  The applicant’s complaint is that with the absence of photographs of the drugs and by the drugs production in evidence separately to the envelope, the judge may have been misled into, consciously or unconsciously, perceiving the quantity of drug as being greater than it really was. 

7.We do not think there is any merit in this argument.  The judge was experienced; had the weights of the ice and ketamine provided to her in evidence as well as the number of packets containing the drugs, and must have been aware, regardless of the mode of exhibiting the drugs, of their quantity and of the way in which they had been packaged at the time of the applicant’s arrest.  The separate production of the drugs and the envelope was no doubt the only practical method of exhibiting them after the forensic examination of the drugs by the government chemist. 

8.No prejudice can have been suffered by the applicant.  He was represented at trial and if any issue had arisen resulting from the separate production of the drugs and the envelope, we are satisfied that would have been brought to the court’s attention. 

Ground 3

9.Two complaints were made under the umbrella of the 3^rd ground. The primary complaint of the applicant was his assertion that the judge’s estimate that he required $13,500 to maintain his habit on a monthly basis was in error, as that calculation was based on the retail price he had paid for the drugs the subject of Charge 2. 

10.The judge in her reasons for verdict said this :

“21. I accept the defendant may be a … user of ice. The defendant said he took drugs almost every day. He said that he spent $900 every 2 days. On a calculation of spending $900 every 2 days that would make a spending of about $14,000 a month. However when asked if he spent about $14,000 a month on drugs he denied he took drugs almost everyday. He said ‘after I finish I take a break for a certain period of time before I start consuming again.’ The defendant’s evidence on his regularity of taking drugs was materially inconsistent. On the one hand the defendant said he took drugs almost everyday and on the other hand he denied that he took them almost everyday but even went so far as to say that there was distinct period abstinence.

22. The defendant’s monthly income was about $12,000-$13,000 which was not fixed.  If the defendant spent about $900 on drugs for 2 days then the defendant would spend approximately $13,500 a month on drugs alone.  That was almost his whole income and perhaps more when he earned less.  I found it wholly inconceivable that the defendant could spend most and sometimes more than his income on the drugs. There was no evidence of any loans or debts.  I found that as soon as the defendant realised that the amount spent on drugs per month would be about his income or more he changed his account to say he did not take drugs almost daily.”

11.It is clear from the judge’s comments that she was not finding as a fact that the applicant earned $13,000 per month and spent all that on drugs but was concerned only with the credibility of the applicant. She was simply stating that the applicant had changed his evidence when it became clear to him that his initial version as to the quantity of drugs he consumed was incredible as it was inconsistent with the income he said he earned from his employment.  The judge was not making an estimate of the actual cost of his monthly consumption of drugs.  She was simply pointing out one of a number of reasons as to why she rejected his evidence. 

12.The applicant further complains that the judge did not calculate the cost of his monthly consumption of ice on the basis of the retail figures provided by the expert prosecution witness.  That evidence was that at the material time 1 gramme of ice cost $606, if purchased on the street.  If, says the applicant, that figure had been used then the cost of his monthly habit would have been in the vicinity of $9,000, and well within his income. 

13.The judge however in fact used that figure in the process of coming to her conclusions. She said in that regard :

“30. The expert valuation of the cost of the ice purchased in May 2009 was in the amount of HK$606 per gramme of ice, or HK$4,308.00 for 7.11 grammes of ice. The defendant (said he) purchased the drugs for almost $800 less than the valuation. That is quite a significant difference. I found it hard to believe that the defendant could get such a large discount on the amount of drugs which would equate to approximately receiving 1 gramme for free. …”

14.The applicant’s evidence was that he earned approximately $12,000 to $13,000 per month when working as a decoration worker.  Even on his own eventual estimate of the monthly cost of his drug habit of $9,000 (based, as the judge said, on the lower revised figures he gave in evidence) his habit still cost more than he could practically afford. 

15.As the judge further said :

“32. I found the defendant’s income was insufficient to support his alleged habit of taking these quantities of drugs. He said he lived, ate and had his clothes washed at his father’s house for free. I found his account that that was all gratuitously provided by his father free of charge to be implausible. I found this was a fabrication in an attempt to support and boost his account to show that he had more than sufficient available funds to support his drug habit.”

16.Even on the basis that the applicant’s habit consumed only $9,000 of his $12,000 to $13,000 income per month, the judge’s logic is valid.  That is particularly so, as the judge pointed out, because the applicant was unemployed or “between projects” at the time of his arrest. 

17.There was no merit to this complaint. 

Ground 4

18.The final matter raised by the applicant is his assertion that, as a drug addict, he did not necessarily act rationally, and so the judge was wrong to reject his case on the basis of its inherent improbabilities. There is no substance to this complaint.  The judge accepted in her reasons for verdict that the applicant was or may have been a user of ice.  There is nothing to suggest that, when considering the inherent improbabilities she found in the evidence of the applicant, she had not borne that fact in mind. On the contrary, the improbabilities the judge found in the applicant’s case were predicated on the basis that he was an addict but that, even so, his version of events did not make sense. 

19.We might conclude by saying that once the judge had rejected the applicant’s case she turned to her assessment of that of the prosecution and concluded finally that :

“34. The drugs were found in his pocket wrapped up in 7 plastic bags. 6 plastic bags contained ice and 1 contained ketamine. There was a significant amount of ice. The retail value estimated by the expert was HK$4,308.00. They were found on the defendant in public at 9.40 am in Parkes Street far away from his home at a time when he was without a job. …

35. The only conclusion to be drawn is that the defendant had a sizable amount of 6.87 grammes of ice contained in 6 separate packets and 1 packet of ketamine for the purposes of trafficking.”

20.That was a conclusion open to her and there is nothing unsafe in the applicant’s conviction on the 1^st charge.

Sentence

21.In approaching her sentence in respect of the 1^st charged offence the judge took a starting point of 5 years’ imprisonment.  That was based on the quantity of ice alone, the judge having ignored the small quantity of ketamine forming part of the drugs the subject of the charge. 

22.Given the quantity of 6.87 grammes of ice, the starting point of sentence entirely complied with the guidelines set out in AG v Ching Kwong Hung (1991) 2 HKLR 125.  Nothing of any substance was able to be advanced on behalf of the applicant in mitigation.  The final sentence, properly arrived at, was therefore 5 years’ imprisonment.  

23.In sentencing for the 2^nd charged offence the judge took a starting point of 12 months’ imprisonment.  That was well within the accepted range for the simple possession of a small quantity of ice and cannot be said to be too severe for, as the judge pointed out, the applicant had four prior convictions for possession of dangerous drugs and, we might add, given the applicant’s recent trafficking offence and his being found on the street in possession of a smaller quantity of the same drug, there was a significant latent risk of the drug or some part of it falling into the hands of others.  That starting point was reduced to 8 months’ imprisonment on the basis of the applicant’s plea. 

24.One month only of the two sentences was ordered to be served consecutively.  That was lenient when it is remembered that the 2^nd charged offence was committed whilst the applicant was on police bail for the 1^st charged offence.  That resulted in a totality of 5 years 1 month’s imprisonment.  Neither sentence was excessive and no complaint can be made by the applicant as to the totality of sentence. 

25.For the above reasons the applications concerning conviction and sentence are dismissed. 

Ms Olivia Tsang, SPP of the Department of Justice, for the Respondent

The Applicant, in person