HKSAR v. Ng Yuet Hung

CACC 20/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 20 OF 2013

(ON APPEAL FROM HCCC NO. 375 OF 2011)

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BETWEEN

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Hon Macrae JA (giving the judgment of the court):

1.The applicant was convicted before Deputy Judge Anthea Pang (as she then was) and a jury on three counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced to a total of 13 and a half years’ imprisonment. She applies for leave to appeal against both her conviction and sentence.

The prosecution case

2.On 14 December 2010, the applicant was seen leaving an address in Hai Tan Street, Shamshuipo, Kowloon at around 9 pm.  It was an admitted fact that the applicant lived at that address at the material time with her nine-year-old son and her boyfriend (Lau).

3.She was stopped and searched by police officers and found to be in possession of a Marlboro cigarette packet inside her handbag, containing 13.46 grammes of a crystalline solid containing 12.47 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’).  The presence of the drug in the cigarette packet was also an admitted fact.  The applicant was duly arrested and cautioned for the offence of trafficking in dangerous drugs but said nothing in response.  The dangerous drugs found in her possession formed the subject matter of Count 1.

4.After her arrest and processing at the police station, the applicant was taken by police officers to her home address for a house search.  Inside the premises were her nine-year-old son and Lau.

5.In a room with a desk (known at trial as the computer room) were found 43.41 grammes of a crystalline solid containing 42.02 grammes of methamphetamine hydrochloride, 0.65 grammes of herbal cannabis, 3 whole tablets and 4 tablet fragments containing 4 milligrammes of flunitrazepam and 9 tablets containing 0.01 gramme of methamphetamine.  These dangerous drugs formed the subject matter of Count 2.

6.Also in the computer room were found piles of re-sealable plastic bags, an electronic scale and two rolls of adhesive tape.  The applicant’s fingerprints were subsequently found on some adhesive tape used to wrap two packets containing dangerous drugs.  The applicant was again arrested and cautioned for the offence of trafficking in dangerous drugs, to which she replied: “The ‘Ice’ is mine.  It has nothing to do Ah Wo.”

7.In the afternoon of 15 December 2010, the applicant was interviewed under caution, which recorded interview was produced before the jury.

8.Some four months later, on 19 March 2011, having been bailed in the meantime by the High Court, the applicant was again stopped and searched at the staircase on the fifth floor of an address in Yu Chau Street, Kowloon.  On this occasion, she was found to be in possession of a re-sealable plastic bag containing 10.99 grammes of a crystalline solid containing 10.85 grammes of methamphetamine hydrochloride.  These dangerous drugs form the subject matter of Count 3.

9.She was again arrested and cautioned, to which she replied: “Ah Sir, the pack(et) of ‘Ice’ was for my own consumption.  Can I be released?”

10.The finding of the drugs on the applicant and her response after caution were both admitted facts at trial.

The defence case

11.Although the applicant did not dispute the finding of the drugs in Counts 1 and 2, she did dispute some of the police evidence surrounding those facts.  For example, she denied that she had tried to remove the cigarette packet and hide it from the police.  She testified that she believed she was delivering a packet of cigarettes and some money to a friend of Lau’s.  She also claimed that she had told the police that the items in the computer room did not belong to her and she did not know what they were.  She maintained that she did not enter the computer room which was normally locked.  She said she was induced to give a statement at the police station on the basis that she could be granted bail and reunited with her young son, if she cooperated.

12.As for the drugs in Count 3, the applicant claimed that they were all for her own consumption.

13.The defence called Lau, who had already pleaded guilty to Counts 1 and 2.  He said that both lots of drugs belonged to him and that the applicant knew nothing about them.  He said he had given her a packet of cigarettes and some money to take to somebody and then switched the packet of cigarettes in her handbag without her knowing that the replacement contained dangerous drugs.  He said that she would not have suspected that the packet she was carrying contained dangerous drugs.  He admitted that he was both a user and a trafficker in dangerous drugs but said he did not think the applicant was a drug addict.

The issues

14.In the light of the admissions made at trial, the issues were very simple and straightforward.  In respect of Count 1, the question was whether the jury could be sure that the applicant knew there were dangerous drugs in the cigarette packet she was carrying.  In respect of Count 2, the issue was whether or not she was proved in law to be in possession of the dangerous drugs.  And in respect of Count 3, the issue was whether the prosecution had shown that the applicant possessed the dangerous drugs for trafficking or whether they might have been for her own consumption.

The applicant’s grounds of appeal against conviction

15.The applicant has raised a number of complaints in her homemade grounds of appeal which she has elaborated upon before us this morning.  Only one of them relates to her appeal against conviction, and bears on the issue of her drug consumption.  It is suggested that her evidence on this matter was essentially misunderstood by prosecuting counsel, corrected by the applicant but then repeated by the deputy judge in her summing-up as though it had not been corrected.

Consideration

16.We have examined the deputy judge’s summing-up in full.  Not only is it completely comprehensive in terms of the law and the recitation of evidence, but it is also extremely fair throughout.  The controversy (such as it was) concerning the misunderstanding of the applicant’s evidence and what she had initially said and later corrected, was in fact fairly summarised before the jury by the deputy judge.  The issues in the trial were all fully placed before the jury as was the evidence which bore on those issues.  It is significant that on the one count (Count 3) where the jury were given a straight choice between trafficking and simple possession, the jury unanimously disbelieved the applicant’s evidence that she had the drugs with her for her own consumption.  That is hardly surprising, given that she was found on the staircase of the fifth floor of a building where she did not live, in possession of a sizeable quantity of methamphetamine hydrochloride in a single bag.

17.We see no merits in any of the complaints advanced by the applicant on conviction.  The issues were fairly placed before the jury who had little difficulty in resolving the factual issues which determined the applicant’s guilt on each count.

18.The application for leave to appeal against conviction is refused.

The sentence

19.The sentence for the three counts was arrived at in the following way.  Treating the methamphetamine hydrochloride component of the drugs in Counts 1 and 2 as obviously derived in the circumstances from the same source, the deputy judge adopted an overall starting point of 9 years’ imprisonment for both counts; the total amount of methamphetamine hydrochloride narcotic for sentencing purposes being 54.49 grammes.  She rightly ignored the amounts of the less serious drugs as being negligible for sentencing purposes.  Accordingly, on the basis of the guidelines in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 124, which suggested a guideline of 7 to 10 years’ imprisonment for quantities of between 10 and 70 grammes of methamphetamine hydrochloride, she passed concurrent sentences of 9 years’ imprisonment in respect of each count.

20.In relation to Count 3, applying the same guidelines, she adopted a starting point of 7 years’ imprisonment for a quantity of 10.85 grammes of methamphetamine hydrochloride narcotic.  Since the facts giving rise to Count 3 occurred some four months after her arrest in respect of Counts 1 and 2, and were therefore committed whilst on bail, the deputy judge considered that it was a completely different offence for which a substantial consecutive element should be passed.  Accordingly, the deputy judge ordered that 4 and a half years of the 7 year sentence on Count 3 should run consecutively to the concurrent terms on Counts 1 and 2, the remaining 2 and a half years being ordered to run concurrently, making a total of 13 and a half years’ imprisonment.

The applicant’s grounds of appeal against sentence and a consideration

thereof

21.The applicant makes a number of complaints about the sentence.  Firstly, she says that some of the dangerous drugs in Count 3 were for her own consumption.  We can dispose of this matter very simply: the jury did not accept her evidence when given the straight option of convicting the applicant of trafficking or simple possession.  Secondly, she says she has a young son who is exhibiting behavioural problems and, understandably, she wishes to be reunited with him as soon as possible.  The regrettable reality, however, as Ms Chan for the respondent points out, is that Counts 1 and 2 were committed while the child was at home where various dangerous drugs were at the time being stored for trafficking purposes.  Moreover, the applicant is no stranger to this offence, having been convicted on a similar indictment before in the High Court in 2002, for which she was sentenced to 6 years and eight months’ imprisonment.

22.Thirdly, the applicant contends that if all the methamphetamine hydrochloride were added together in the three counts, it would still come to less than 70 grammes for which the guidelines in Ching Kwok Hung suggest a starting point of 10 years’ imprisonment.  Accordingly, she invites us to find that the overall sentence of 13 and a half years’ imprisonment was manifestly excessive.

23.The difficulty for the applicant on this latter argument is that not only were the facts giving rise to Count 3 wholly unconnected with the facts of Counts 1 and 2, they were committed some time later whilst she was on bail for those offences.  That is an extremely serious matter, for it shows a complete disregard and contempt for the order of the court which admitted her to bail pending her trial on the first two counts.  Indeed, the deputy judge would have been entirely justified in adopting a higher starting point than she did on Count 3 for this aggravating factor.  Furthermore, although she does not stand to be sentenced twice for the same offence, the fact is that the applicant had already been sentenced to a lengthy term of imprisonment in the High Court for exactly the same offence.  Not only does she not learn from her mistakes, but she has used up any sympathy we might have had for the argument that the totality of sentence was in the circumstances manifestly excessive.

24.In our judgment, the sentence was a severe one, but in the circumstances and on the facts it cannot be said to be manifestly excessive.  Accordingly, the application for leave to appeal against sentence must also be refused.

(Andrew Macrae) Justice of Appeal

(S C Poon) Judge of the Court of First Instance

(Ian McWalters) Judge of the Court of First Instance

The applicant appeared in person

Ms Alice Chan, of the Department of Justice, for the respondent