HKSAR v. Chan Hung Hoi

CACC 111/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 111 OF 2010

(ON APPEAL FROM DCCC NO. 344 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Cheung JA and Macrae J in Court

Date of Hearing and Judgment: 13 July 2011

Date of Reasons for Judgment: 28 July 2011

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons for Judgment of the Court):

1.The applicant was convicted in the District Court before HH Judge Browne of one charge of trafficking in dangerous drugs, namely 23.89 grammes of a mixture containing 10.44 grammes of heroin hydrochloride and 6 tablets containing 0.07 grammes of midazolam (Charge 1), and another charge of dealing with property known or believed to represent the proceeds of drug trafficking, namely cash amounting to HK$306,760 (Charge 2). He was sentenced to five years’ imprisonment on Charge 1 and two years’ imprisonment on Charge 2, with one year of the sentence on the second charge ordered to run consecutively to the first, making a total of six years’ imprisonment. He had before us abandoned his appeal against sentence, which was accordingly dismissed. Having heard argument advanced by his counsel, Mr H Y Wong, in relation to his appeal against conviction, we dismissed the application for leave to appeal against conviction and said we would give our reasons in due course. This we now do.

2.The evidence for the prosecution was that at 10:56 a.m. on 21 February 2009, the applicant was seen acting suspiciously by police officers who were on anti-robbery patrol in Queen’s Road East in Wanchai.  The applicant was observed wandering about looking at the entrances of various buildings.  Accordingly, one of the officers crossed the road to intercept him whereupon the applicant, on noticing the officer, hurried along the road and turned into Gresson Street.  He shortly afterwards emerged again from Gresson Street whereupon he was promptly stopped and searched by the officer.  A foil packet containing 5 midazolam tablets was recovered from one of his pockets.  The applicant immediately explained that he had a prescription for these tablets.  Inside his underpants the officer further found a resealable plastic bag containing 113 packets of a mixture containing heroin hydrochloride.  The applicant was accordingly arrested and cautioned, to which he replied that the heroin had been bought for his own consumption from an unknown person in Yau Ma Tei for HK$9,500.  He was subsequently found upon search at the police station to have HK$4,742, RMB167 and US$201 in cash on his person.

3.Later that afternoon a police party proceeded to the applicant’s address at 65 Queen’s Road East where the applicant retrieved a prescription dated 30 June 2008 issued by a Dr Wong Wai Chung for 30 midazolam tablets.  The applicant also drew the attention of the police to a quantity of cash in 20 bundles in an unlocked drawer of his room, which he claimed he had won by gambling in Macau.  The cash was made up of 59 HK$1,000 notes, 309 HK$500 notes, 887 HK$100 notes, 36 HK$50 notes, 113 HK$20 notes and 10 HK$10 notes.  The applicant also produced a “ruby” gambling card issued by a club in Macau.  Later under further caution the applicant claimed that the money represented his winnings at playing baccarat in Macau since mid-June 2008, that he did not deposit the money into a bank because of low interest rates preferring to keep the money in cash to invest in the stock market when prices dropped, and that he was a drug addict and not a trafficker.

4.On 24 February 2009, whilst on remand at Lai Chi Kok reception centre, the applicant excreted seven objects wrapped in white plastic sheets later found to contain heroin and one plastic straw containing midazolam. When asked to give an explanation under caution later that day, the applicant said he had accidentally swallowed the drugs when a police officer had grabbed his neck whilst he was walking along Queen’s Road East.  He said that the heroin had been bought from “Ah Keung” at Southorn Playground on the morning of 21 February.  In relation to his gambling habit he said he had been to Macau on more than 15 occasions since June 2008 and had won on every visit albeit in different amounts.  He claimed to be working on a casual basis and said that in 2008 he had been granted traffic accident victim compensation of HK$15,000.  He had also started to receive monthly comprehensive social security assistance of about HK$3,000 a month from July 2008.

5.The applicant elected to give evidence.  He said he had been a drug addict for about 10 years consuming about 4 to 6 pellets of heroin daily at a cost of HK$500 - 600 per day.  He also took midazolam because he suffered from insomnia but he did not take it every day.  The midazolam tablets found in his possession were from the original doctor’s prescription which he had produced to the police.  He would simply keep a few tablets on him in case of need.  On the day of his arrest he had left home at around 10 a.m. to buy some drugs.  He had earlier telephoned a supplier in Yau Ma Tei who agreed to meet him at Wanchai MTR Station.  The applicant accordingly bought 120 packets of heroin, which he said would last him about a month, for HK$9,600.  He put them in his underpants and returned home.  Whilst he was walking along the road some pellets of heroin fell out of the packet he had just bought, so he took some out of his underpants and put them in his mouth in case they should fall onto the ground.  He said he did notice the police officer when he was in Wanchai Road but he had never turned into Gresson Street.  He swallowed the object in his mouth out of fright when the officer intercepted him.  He explained that it was he who told the officers about the cash in his drawer at home when the issue of bail arose.  If he were not to be bailed he was concerned about the security of the cash whilst he was in custody.  The applicant also elaborated upon his earnings and gambling habit which in broad terms corresponded to what he had told the police under caution.

6.The issue at trial was, therefore, one of fact for the trial judge to decide.  In that analysis the trial judge accepted the evidence of the police officers and rejected that of the applicant, giving specific reasons for his findings of credibility.  In advancing the appeal on the applicant’s behalf, Mr Wong with his customary realism and succinctness accepts the difficulties he faces in upsetting the trial judge’s findings of fact and credibility.  In essence, he argues that there were certain features of the evidence of the police officers which were inherently improbable, whilst the applicant’s explanations for his possession of drugs and the money could on the evidence have been true, in which case the adverse inferences which the trial judge drew against him were not the only reasonable inferences to draw.

7.So far as the contention that the evidence of the police officers was inherently improbable, this turned on the evidence of the police that the applicant, on seeing them coming towards him, had turned into Gresson Street but then re-emerged into the arms of a police officer whom he was apparently trying to avoid.  Furthermore, the notion that the applicant should have been wandering around Queen’s Road East arousing the suspicion of police officers should be seen in the context of the fact that he actually lived across the road in Queen’s Road East.  Mr Wong argued that, if he were looking for customers, it would be rather unlikely for the applicant to have had so many packets of drugs in two different places on his person when he was living just across the street.

8.We have examined these arguments but have to say that neither individually nor cumulatively do they suggest that this evidence is inherently improbable nor do they cast doubt on the police evidence or on the trial judge’s findings in this regard.

9.As for the applicant’s account, it is true that there was evidence of the applicant’s production to the police of the prescription by Dr Wong for 30 tablets of midazolam.  However, that prescription was given more than seven months before the applicant’s arrest.  It does not explain why the applicant should have been carrying midazolam tablets around on his person and in the street on the day in question and nor does it explain why one of the objects which he excreted three days after his arrest should have been a midazolam tablet in trafficable form; for, obviously, doctors do not give out midazolam tablets in straws.  The trial judge would have been entitled to regard the applicant’s evidence of how these objects came to be inside him as preposterous.

10.In relation to the sizeable quantity of cash found in the applicant’s room, the trial judge went into a detailed analysis of the applicant’s earnings and the immigration records listing his numerous visits to Macau.  He noted, however, that the last time the applicant had been to Macau was in December 2008, nearly two months before his arrest.  Yet when he was arrested in February 2009, he had a considerable amount of cash on his person as well as in his room.  It must also be remembered that he had a considerable quantity of dangerous drugs on his person.  It was in these circumstances that the trial judge looking at the totality of the circumstantial evidence, expressed himself to be “irresistibly drawn” to the conclusion that the defendant was involved in a substantial drug trafficking operation and that the money found in his room was the proceeds of such trafficking.  With due respect to Mr Wong’s arguments, we would have found it extraordinary if the trial judge had come to any other conclusion.

11.In our judgment, there was no merit in this application in relation to either charge, and we accordingly dismissed it.

Ms Virginia Lau, SPP of Department of Justice, for the Respondent

Mr H Y Wong and Ms Cheng Ching Yee, instructed by Hong Kong Bar Association’s Free Legal Service Scheme, for the Applicant