HKSAR v. Chau Leong Wa

CAC C 51/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2012

(ON APPEAL FROM DCCC NO. 418 OF 2011)

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BETWEEN

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Before: Hon Yeung VP, Lunn JA and Barnes J in Court

Date of Hearing: 13 September 2012

Date of Judgment: 13 September 2012

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Facts

1.On 27 February 2011, shortly after mid-night, the applicant (Chau Leong Wa) was stopped and searched by a police officer at the junction of Tsing Chau Street and Ma Tau Wai Road in Kowloon.  The police officer found from the two socks of the applicant plastic bags containing 54.12 grammes of a powder containing 43.03 grammes of ketamine.  The retail price of the ketamine was $6,332.  The applicant also had $1,900.20, RMB$ 620, several Macau/Australian dollars and some Thai Baht on his person.

2.The applicant was arrested and he said under caution, “Ah Sir, the K Chai is for my own consumption”.  When further interviewed by the police in the afternoon on the same day, the applicant reiterated that the ketamine found in his possession was for his own consumption.

3.The applicant was charged with trafficking in 43.03 grammes of ketamine.  He admitted possession of the drugs, but pleaded not guilty to the charge and appeared before Judge S D’Almada Remedios (the judge) in the District Court for trial.

4.On 11 January 2012, the judge found the applicant guilty as charged and sentenced him to 5 years and 6 months’ imprisonment.  The applicant seeks leave to appeal against conviction.

The Defence Case

5.Apart from saying that the ketamine was hidden in his shoes and not his socks, the applicant did not dispute the prosecution case, but again claimed that the ketamine in question was for his own consumption.

6.The applicant, aged 30, was a drug addict with 8 previous convictions of possession of a dangerous drug and had been sentenced to the Drug Addiction Treatment Centre (DATC).  He was a truck driver earning $11,000 to $12,000 per month.

7.The applicant told the judge that he started using ketamine when he was 18 and by February 2011, he had to sniff large amounts of ketamine.  The applicant claimed that the sniffing of a large amount of ketamine for a long period caused stomach pains and because of that he had been admitted to hospitals on a number of previous occasions.  He produced medical reports to show his admissions into hospitals.

8.The applicant said he obtained his $9,000 salary on 26 February 2011 and in the evening he found out that he was running out of ketamine.  He said he decided to have a haircut and to go to Tsimshatsui East to buy ketamine.  The applicant said he took $5,000 with him and after a hair-cut, he took a taxi to go to Tsimshatsui East, with a view to obtain ketamine from his regular supplier.

9.However by chance he bumped into Ah Kuen whom he met in DATC and he told Ah Kuen he was there to buy ketamine.  When Ah Kuen learnt that the applicant had to pay $1,500 per one ounce of ketamine, he offered to sell ketamine to the applicant at a discount of $2,400 for two ounces, saying at the same time that the applicant could try the ketamine first before making payment.

10.The applicant then arranged to meet Ah Kuen at 11 pm and after they met, Ah Kuen took the applicant to a toilet where he was given two packets of ketamine to try.  The applicant said he was happy with the quality of the ketamine and he then gave $3,000 to Ah Kuen who returned $600 to him as change.

11.According to the applicant, when he was going home with the ketamine, his friend (Ah Sam) telephoned him, saying that he just had an argument with his girlfriend and had no money.  The applicant then went to see Ah Sam and on arriving at Ma Tau Wai Road in Hung Hom, he saw Ah Sam arguing with his girlfriend.  The applicant said as he was carrying the ketamine, he told Ah Sam and his girlfriend to stop arguing and to go somewhere to sit down.  They then went to a café to have some food before he left Ah Sam and his girlfriend.  By that time Ah Sam had made up with his girlfriend.  However, as the applicant was in the street thinking of going home, he was suddenly intercepted by the police.

12.The applicant further claimed that he had obtained just over 56 grammes of ketamine from Ah Kuen and had consumed some of it by the time he was intercepted.  He said it would have taken him 7 to 10 days to consume the amounts of ketamine found in his possession.

13.It was the applicant’s case that he would snort ketamine around 10 times of 0.5 to 0.6 gramme a snort throughout the day as its effect would only last for 20 to 30 minutes.  The applicant said his daily consumption was 6 to 7 grammes.

14.The applicant claimed that on the day in question, he had sniffed some ketamine before he made the purchase from Ah Kuen, then he had another sniff at 11 pm and then another one at 11.45 pm before he was intercepted by the police.

The Judge’s Findings

15.The judge accepted that the applicant was a user of ketamine, but rejected his evidence that the ketamine in question was for his own consumption.

16.The judge listed the discrepancies between his evidence and what he said during his interview by the police and rejected the applicant’s explanations for those discrepancies.

17.The judge emphasized that in the interview, the applicant said he only took ketamine 2 to 3 times a week, and that his daily consumption was 7 to 10 grammes a day, but in his evidence, he said he took ketamine daily (10 times a day) and his daily consumption was about 6 grammes.

18.The judge rejected the applicant’s explanations that when he told the police he only took ketamine 2 to 3 times a week, he was only referring to the week when he was not feeling well and had to consult a doctor for stomach pains.

19.The judge took the view that the applicant would not have carried a large quantity of ketamine in the street three hours after he had purchased the drugs just because a friend said he had no money and wanted to see him.

20.The judge pointed out the different accounts given by the applicant as to why he was at Tsing Chau Street and Ma Tau Wai Road at the time of his arrest.

21.On the prosecution evidence, including the street value of the ketamine and the fact that the applicant was acting in a furtive manner, the judge concluded that the applicant was in possession of the ketamine for the purpose of trafficking and not for his own consumption.

Grounds of Appeal

22.In his home-made grounds, the applicant said there were other cases in which the charges of trafficking were amended to simple possession.

23.He tells us in court that in 2008, he was found in possession of over 70 grammes of ketamine, yet he was only charged with possession and was sentenced to 12 weeks’ imprisonment.

24.In his written submissions, the applicant reiterated that the ketamine was for his own consumption and that as he had a decent job with stable income, there was no need for him to traffick in drugs.

25.The applicant submitted that the discrepancies between what he said during the police interview and his evidence in court did not concern major issues.  He said he only gave simple answers during the interview, but was questioned at length in court, thus giving rise to the discrepancies.  He also claimed that having been remanded for 10 months before he gave evidence in court, he was muddle-headed and was unable to remember the details.

26.The applicant further claimed that it was not fair for the judge to rely on the prosecution evidence with regard to the average intake of ketamine and the value of the ketamine in question.  His contention was that for a chronic user like him, he would need to consume a much larger quantity than a normal user and he paid a lesser sum of money for the ketamine because it was a wholesale price.

Discussion

27.The applicant was found in possession of a large quantity of ketamine with a street value of over $6,000.  The applicant claimed that such large quantity of ketamine was intended for his own consumption and the issue before the judge was whether the applicant’s explanation was probable. What happened in other similar cases and how the applicant was dealt with in the past is not relevant for our consideration.

28.The judge had considered in detail the applicant’s evidence with reference to what he said during the interview with the police shortly after his arrest.

29.There were obvious discrepancies between the applicant’s evidence and what he said during the interview.  The applicant does not seek to argue otherwise.

30.Contrary to what the applicant submitted, the discrepancies went to the very root of his defence, namely how often and how much he consumes ketamine.  On the evidence, the applicant was clearly not telling the truth with regard to those major issues and the judge was entitled to reject his explanations.

31.Once the applicant’s evidence was rejected, the only remaining issue was whether, on the prosecution evidence, the only reasonable inference was that the applicant was in possession of the ketamine for the purpose of unlawful trafficking.

32.The judge was aware that the applicant was a ketamine abuser and that he was working as a truck driver earning $400 a day.  The judge had carefully analysed the prosecution evidence, including the value of the ketamine, how they were hidden, the circumstances in which the applicant was arrested and his demeanour before his arrest.

33.Relying on Professor Lee’s opinions, accepted by the Court of Appeal in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, that recreational doses ranges from 10 to 250 mg when taken nasally, the judge emphasized that the quantity of ketamine in the applicant’s possession would provide more than 172 doses.

34.The judge pointed out that it was not possible for the applicant to take 7 to 10 grammes of ketamine as he had claimed in the interview by the police.

35.In our view, the judge was right in her analysis. The judge was entitled to infer that the applicant had the ketamine for the purpose of unlawful trafficking.

36.We do not find the conviction against the applicant unsafe or unsatisfactory.  The application for leave to appeal against conviction is therefore dismissed. 

Mr Martin Hui, SADPP of the Department of Justice, for the Respondent

The Applicant appeared in person