HKSAR v. Cheng Kong Sang

CACC 371/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 2008

(ON APPEAL FROM DCCC 427 OF 2008)

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BETWEEN

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Before: Hon Yeung JA, Beeson J and Lunn J

Date of Hearing: 8 October 2010

Date of Judgment: 8 October 2010

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.The applicant (Cheng Kong Sang) resided in Shenzhen and sometimes returned to live at Room 1633, Sun Fong House, Sun Chui Estate, Shatin (the premises). The applicant owned a private car (KJ 3643).

2.On 9 April 2002 at about 11.30 pm, the applicant was intercepted and searched by police officers as he was leaving the premises. Seventy small packets containing 21.21 grammes of a mixture containing 10.88 grammes of heroin hydrochloride were found inside the right front pocket of applicant’s jeans and a plastic bag containing 27.66 grammes of a mixture containing 14.09 grammes of heroin hydrochloride was found inside the cap that he wore. Private car KJ 3643 was also searched, but nothing suspicious was found.

3.The applicant claimed that the drugs were purchased for HK$10,000 and that he intended to use them for his own consumption. The retail value of the drugs was HK$18,103.54.

4.When further interviewed at the police station in the early morning on 10 April 2002, the applicant reiterated that the drugs were for his own consumption and that he had brought them from “Ah Ming” in Tsui Ping Road, Kwun Tong for $10,000. However, he did not know Ah Ming’s full name and he did not have his address or telephone number.

5.The applicant said that he had to return to the Mainland to work for two weeks and he needed more drugs. He also said it was cheaper to buy in a large quantity.

6.The applicant absconded whilst on bail but, following his return to Hong Kong in April 2008, was tried by Deputy Judge Glass in October 2008 in the District Court on a charge of trafficking in a dangerous drug. The applicant admitted possession of the drugs but again claimed that they were for his own consumption.

7.The applicant was convicted as charged and sentenced to 5 years and 9 months’ imprisonment. He sought leave to appeal against both conviction and sentence. At the commencement of the hearing, the applicant, through his counsel indicated his wish to abandon his application for leave to appeal against sentence. That application is dismissed and we are only concerned with his application relating to conviction.

The Prosecution Evidence

8.The prosecution evidence was not challenged and was admitted by way of “Admitted Facts”. Of significance was the admission that an antecedent statement had been taken from the applicant, which statement was produced as an exhibit at trial.

9.The arresting officer confirmed that no other suspicious item was found either in the premises or in the applicant’s private car. The officer also confirmed that the applicant was co-operative and had maintained throughout that the drugs were for his own consumption.

The Defence Case

10.The applicant related to the court his background and family circumstances. He said he was a decoration worker earning $8,000 to $10,000 a month with occasional additional income from driving for his brother’s business. The applicant admitted that he was addicted to heroin, but had given it up until mid-2001 when he suffered depression due to family problems.

11.The applicant again reiterated that the heroin found on him was brought from Ah Ming for his own consumption two hours before the arrest for $10,000 that he just happened to have. He also said he was in the course of returning to Shenzhen. The applicant admitted that the drugs found on him would last him 24 days and that he decided to carry more drugs because it was convenient to do so.

12.The applicant insisted that he told the officer that his income was slightly over $20,000 a month and not $10,000 as recorded by him.

13.The applicant’s younger brother gave evidence on his behalf and confirmed that the applicant was a drug addict and had worked for his company on a casual basis. He also said both he and another brother gave money to the applicant on the instruction of their mother.

14.The applicant’s ex-wife confirmed that the applicant sometimes relied on his brothers for money. She confirmed that the applicant was a drug addict and that he would use money to buy drugs.

The Judge’s Findings

15.In a 41-page Reasons for Verdict, the judge rejected the defence’s case that the drugs in question were for his own consumption, saying that the applicant was not telling the truth on a number of matters. The judge inferred from the evidence, including the quantities and the way they were packaged and hidden, that the applicant did not have them for his own use. The judge therefore convicted the applicant as charged.

16.At the outset of his Reasons for Verdict (para 3), the judge determined of the “antecedents” set out in the applicant’s “antecedent statement”, that they “…were true as I did not find any reason for the police to record false information…”

17.Thereafter, the judge used that primary finding as a basis for rejecting the testimony of the applicant. For example, of the applicant’s testimony that his imprisonment for an offence in 1998 was for a period of six months only, the judge said (para 11(1): “…I found the Agreed Facts spoke of his release in early 2002 from a 1998 offence and I found that the Agreed Facts were the correct position”.

18.Similarly, in respect of the deposit of monies into the bank account of the applicant in 2001, the judge said (para 47): “…I noted from the Agreed Facts that he was in prison throughout 2001…” The judge went on to say (para 48): “I found in conclusion that I rejected the defendant’s explanation of these accounts…”

19.The judge rejected the applicant’s evidence, because of the erroneous assumption that the applicant was not released from jail until early 2002. The judge further found that dangerous drugs were cheaper in the Mainland than they were in Hong Kong because the cost of living and the workers’ earnings in the Mainland were much less. The judge also found that policing for dangerous drugs was much more lax in the Mainland.

Grounds of Appeal

20.Mr Jonathan Kwan, counsel for the applicant, suggests that the judge erred in rejecting his defence and finding that he possessed the dangerous drugs for the purpose of unlawful trafficking. Mr Kwan argues that the evidence was consistent with the defence’s case.

The Respondent’s Position

21.Ms Samatha Chiu, on behalf of the respondent, concedes that the judge had rejected the applicant’s defence partly on an erroneous assumption and that there was a material irregularity. However Ms Chiu submits that this is a proper case for the application of the proviso as the applicant’s case would have been rejected anyway.

22.Ms Chiu pointed out that the quantity of heroin in question, on the basis that the average consumption of a heroin addict is between 0.25 and 0.7 gramme of pure heroin a day as observed in The Queen v Cheung Ping Chiu Cr App No 162/1993, would have lasted the applicant much longer that 24 days as claimed by him.

23.Ms Chiu also emphasizes that there were 70 packets with a retail value of over $18,000 and that the applicant was leaving the premises with all the drugs on his person when he claimed that he was only leaving for the Mainland for two weeks the next day.

24.Ms Chiu suggests the applicant’s evidence is not believable and that the only irresistible inference is that the applicant intended to use the heroin in question for trafficking.

Discussion

25.We find it astonishing that for a relatively simple case, the judge found it necessary to deliver a 41 page Reasons for Verdict. As conceded by Ms Chiu, the judge relied on an erroneous assumption in rejecting the applicant’s case. The judge’s conclusion that dangerous drugs were cheaper in the Mainland and that the policing for dangerous drugs was more lax were simply unsupported by evidence. We find it difficult to support all of the judge’s reasoning in rejecting the applicant’s case.

26.It falls upon us to decide on the evidence whether the only reasonable inference is that the applicant had the heroin in question for the purpose of trafficking, bearing in mind that it is for the prosecution to prove the trafficking purpose of the possession beyond a reasonable doubt.

27.Whilst we accept that the facts give rise to a suspicion, perhaps a strong one too, that the applicant possessed the heroin for the purpose of trafficking, we do not think that that had been established beyond a reasonable doubt.

28.This is not one of those cases where the quantity of the drug provides a clear indication of a trafficking purpose. We are concerned with about 25 grammes of heroin and such quantity is not inconsistent with the defence’s case that the applicant had purchased them for his own consumption when he was in the Mainland. We also take into consideration the following factors:

1.   it was undisputed that the applicant had been a drug addict for a long time, and contrary to Ms Chiu’s submission, the judge actually found that the applicant’s daily consumption was 1 to 2 grammes of heroin mixture;

2.   there was no suggestion that the place at which the applicant was arrested was a place to which traffickers or purchasers of drugs resorted;

3.   nothing was found at the premises or in his car to suggest that the applicant was a trafficker nor was there any packing paraphernalia; and

4.   the evidence of the applicant’s brother and ex-wife, whose evidence the judge accepted, supported the applicant’s case that he had sufficient financial ability to purchase the heroin for his own consumption.

29.The judge’s reasoning is clearly flawed. We find 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 of the heroin for the purpose of trafficking. We also cannot conscientiously conclude that on the evidence a properly directed jury would inevitably have convicted the applicant of trafficking and given that there remained a possibility that the jury may have convicted of simple possession, it is not a proper case to apply the proviso as suggested by Ms Chiu.

30.Accordingly we grant the applicant leave to appeal against conviction. Treating the application as the appeal proper, we allow the appeal by setting aside the conviction of trafficking and substituting therefore a conviction for possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance Cap 134.

31.Pursuant to the requirement of section 54A of the Dangerous Drug Ordinance, Cap 134, we remand the applicant in custody pending the preparation of a DATC report.

Ms Samantha Chiu, PP of the Department of Justice for the Respondent.

Mr Jonathan Kwan instructed by Messrs Paul Kwong & Co for the Applicant.