Case Detail

CACC 88/2024

[2025] HKCA 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 88 OF 2024

(ON APPEAL FROM DCCC NO 872 OF 2022)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Wong Wai Wah (王偉華)	Applicant

________________________

Before:

Hon Zervos JA in Court

Date of Hearing:	4 June 2025
Date of Decision:	4 June 2025

_______________

D E C I S I O N

_______________

1. This is an application by the applicant for bail pending his appeal against conviction and sentence.

2. The applicant faced three charges of drug related offences. He was convicted on his own plea of one charge of possession of dangerous drugs[1] (Charge 2) and one charge of possession of apparatus fit and intended for the inhalation of dangerous drugs[2] (Charge 3). He offered to plead guilty to simple possession in respect of one charge of trafficking in dangerous drugs, namely, 0.90 gramme of a solid containing 0.46 gramme of cocaine and 9.02 grammes of a crystalline solid containing 8.86 grammes of methamphetamine hydrochloride (commonly known as Ice) (Charge 1), but the prosecution rejected this. On 2 April 2024, following a trial before District Court Judge Stanley Chan (the judge), the applicant was convicted of Charge 1. He was sentenced to concurrent terms of imprisonment of 6 years and 3 months on Charge 1, and 2 months each on Charges 2 and 3.

3. The applicant filed a notice of application for leave to appeal against conviction and sentence (Form XI) in respect of Charge 1 only on 24 April 2024. Mr Christopher Grounds, for the applicant, filed the perfected grounds of appeal against conviction and sentence on 19 August and 2 September 2024. At the leave hearing on 18 February 2025, the Single Judge granted the applicant leave to appeal against his conviction on Grounds 2 to 4[3], and sentence on Grounds 1 and 2[4].

4. In respect of his appeal against conviction, the applicant complains that the judge erred in rejecting his explanation that the drugs were for his own consumption and drawing the only irresistible inference that he possessed the drugs for trafficking (Grounds 2 and 4); and failing to give sufficient reasons for the conviction (Ground 3).

5. As for his appeal against sentence, the applicant complains that the reduction of 3 months given by the judge for self-consumption was inadequate (Ground 1); and the judge erred in not giving any credit for his agreement with most of the prosecution case (Ground 2).[5]

6. On 15 May 2025, the applicant filed two affirmations in support of his bail application.

The bail application

7. Bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”)[6]. In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[7] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[8]

8. Mr. Grounds submits this application on both merits and time basis. He argues there is a prima facie likelihood of success in the conviction appeal that there was insufficient evidential basis to rebut a case of simple possession and uphold a trafficking conviction. He further contends that, should the trafficking conviction be upheld, the applicant is entitled to a sentencing discount of 10% to 25% for self-consumption and an additional discount for agreeing with the prosecution case. He points out that the applicant has been in custody since his conviction on 2 April 2024, and his earliest release date is 23 May 2027.[9] By the time the appeal is to be heard, which has yet to be fixed, the applicant will have served a substantial part of his sentence, taking into account the one third remission for good conduct. Mr Grounds refers to the decision in HKSAR v Kulemesin Yuriy[10], submitting that bail has been granted on the time served basis, even where only half of the sentence would have been served by the appeal hearing.

The applicant’s criminal record

9. Amongst his thirty appearances before the courts, the applicant had 56 previous convictions, including seven for possession of dangerous drugs between 1989 and 2021, and one for trafficking in dangerous drugs in June 2006, for which he was sentenced in the High Court to 4 years and 8 months’ imprisonment.[11]

10. The applicant failed to answer bail on two previous occasions following his convictions for a drug possession offence in 2005 and driving related offences in 2012.[12] The respondent notes that the second occasion in which the applicant breached bail, spanned a period of about 8 months from 26 January 2012 to 31 August 2012. Given these previous absconding records and the long sentence in this case, the respondent submits that there is a substantial risk that the applicant would fail to surrender to custody: HKSAR v Lau Man Kin.[13]

11. The applicant stated in his affirmation that he had a car accident in 2015 and was hospitalised for two months, after which he suffered memory loss that has impaired his ability to recall those two occasions.[14]

The brief facts

12. It was not disputed that the applicant was intercepted by the police when he was in a private vehicle[15], parked near his residence on 13 April 2022. The police searched the applicant and found in his possession two rolls of cannabis in a cigarette packet and cash of $11,570 inside his cross-body bag.[16] He stated under caution that the two cannabis rolls were for his own consumption[17]. The police searched his residence, where they found more drugs, including Ice and cocaine[18], which formed the basis of Charge 1. They also found inhaling apparatus[19], which formed the basis of Charges 2 and 3, and other items[20]. He stated under caution that the drugs were for his own consumption and did not sell them.[21]

13. In a subsequent video recorded interview[22], the applicant maintained his account that all of the drugs found were for his own consumption. He said he had been a drug addict for more than a decade, consuming one gramme of Ice per day[23]. He also took cannabis and cocaine.[24] He described how he used the apparatus to consume the drugs[25]. He recalled buying the cannabis and Ice from an Indian or Pakistani national called “ON”, but had no way of contacting him apart from meeting him in Chungking Mansions in Tsim Sha Tsui[26]. He said he bought one packet of 7 grammes of Ice at a cost of $2,000, and it was divided into portions sufficient for his consumption for half a month.[27] He explained that the electronic scales were used for preventing drug suppliers from cheating him by weight[28]. The quantity of unused resealable plastic bags was for dividing the Ice to prevent an overdose[29]. He said two resealable plastic bags contained “baking soda” for cooking.[30]

14. A DNA report revealed a mixture of DNA identified from three individuals, including the applicant, on a glass bottle containing a quantity of Ice in liquid form.[31] The prosecution submitted that the estimated value of the Ice and cocaine seized in Charge 1 was $5,978 in total.[32]

15. The applicant elected not to give evidence or call any witnesses. He relied on his out-of-court cautioned statements.

The issue at trial

16. The sole issue at trial was whether the applicant had the drugs for the purpose of trafficking, as the prosecution alleged, or whether he had them for the purpose of his own consumption, as he claimed.

The issue of self-consumption

17. As regards the issue of self-consumption, the applicant stated in his affirmation that his claim in his interview about consuming “one gramme of Ice every day” was made in error. He clarified that 7 grammes of Ice purchased in one packet was sufficient for him to take “for half a month”, indicating a daily consumption of about half a gramme instead.[33]

18. Where it is shown that a “significant proportion” of the drugs are for the defendant’s own consumption, a sentencing court should adjust the sentence to reflect the fact that not all the drugs were intended for trafficking, with an appropriate discount falling in the range of 10% to 25%. This will depend upon the particular facts and circumstances of the case, but critical factors will include the quantity of drugs claimed to be for self-consumption, the total quantity of drugs involved, and the circumstances in which the offence took place.[34] A sentencing court will also bear in mind that possession of the dangerous drugs claimed to be for self-consumption carries a term of imprisonment, which may require enhancement if there is a latent risk that some of the drugs are accessible to or by others: HKSAR v Choi Chun Wo[35]. It also needs to be appreciated that an appellate court will not interfere with a discount to a sentence given by a judge on account of self-consumption unless he has erred in principle: HKSAR v Chow Chun Sang[36].

The drug valuation

19. The applicant also took issue with the drug valuation as identified in the leave judgment.[37] Mr Grounds argues that it does not indicate trafficking and was not relied upon by the judge for the conviction on Charge 1. He reiterates that the applicant’s defence that the value of the Ice seized was $2,000 for 7.80 grammes. At trial, Mr Grounds challenged the expert evidence on the drug valuations, but the judge accepted this evidence and found that the street value was $5,160 for Ice and $818 (powder) or $1,490 (crack) for cocaine.[38]

The merits ground

20. Mr Grounds refers to the fact that the Single Judge found that Grounds 2 to 4 are reasonably arguable for an appeal against the applicant’s conviction. However, he very properly acknowledges that this does not automatically qualify the appeal as prima facie likely to succeed. That said, a reasonably arguable ground of appeal implicitly has a reasonable prospect of success. He nevertheless argues that with Ground 4, there is a prima facie likelihood of success because there was an insufficient evidential foundation to draw the irresistible inference that the applicant was trafficking in the drugs in question. He submits that on the merits ground, the applicant should be granted bail.

21. I am persuaded by the arguments advanced by Mr Grounds that the merits ground is satisfied.

The time ground

22. Mr Grounds also refers to the time already served by the applicant, and argues that on the time ground, the applicant also qualifies for the grant of bail. I agree. On the basis that the applicant has a reasonable prospect of success in overturning his conviction based on the reasonably arguable grounds of appeal for which leave has been granted, this would result in a substantial reduction in sentence, which he would have served by the time his appeal is heard.

The grant of bail pending appeal

23. I accept that there is no risk of the applicant absconding, but the same cannot be said for the likelihood of him meeting his bail conditions or committing further offences whilst on bail. The applicant has explained the circumstances of his previous breaches of bail due to health issues and undergoing periods of hospitalisation. As already pointed out, he has an appalling criminal record for drug and driving offences. There is a real risk of him reoffending whilst on bail.

24. Mr Grounds readily acknowledges that the applicant is a drug addict with a serious drug addiction problem. He points out that he has been off drugs during the time he has been in custody, and his state of health has reached a stage where any further drug abuse could have serious deleterious consequences to his well-being. Mr Grounds makes the point that sooner or later, the applicant will be released from custody and if he has met the requirements for bail pending appeal, he should be granted bail with appropriate conditions to address or deal with any relevant considerations or concerns, when that is possible.

25. I have decided to grant the applicant bail pending appeal with appropriate conditions to address the concern of his possible reoffending.

(Kevin Zervos)
Justice of Appeal

Mr Joe Hui, SPP, of Department of Justice, for the respondent

Mr Christopher Grounds, instructed by Betty Chan & Co, assigned by Director of Legal Aid, for the applicant

[1] Involving 3.18 grammes of cannabis in herbal form, 0.14 gramme of a crystalline solid containing 0.09 gramme of methamphetamine, 0.09 gramme of a solid containing methamphetamine, and 63 millilitres of liquid containing 0.09 gramme of methamphetamine.

[2] Involving 3 glass tubes, 3 glass bottles and a metal pipe.

[3] The applicant confirmed in his written submission for the substantive appeal that Ground 1 will not be pursued: Applicant’s Written Submission filed on 21 May 2025, at [3].

[4] HKSAR v Wong Wai Wah, unrep., CACC 88/2024, 7 March 2025, per Macrae Acting CJHC.

[5] Applicant’s Written Submission filed on 21 May 2025.

[6] HKSAR v Xu Zhou, unrep., CACC 139/2021, 22 October 2021, at [6].

[7] HKSAR v Fong King-choi, unrep., CACC 319/2018, 2 May 2019, at [3]-[6].

[8] HKSAR v Chung Ho Yin, unrep., CACC 75/2020, 17 September 2021, at [39]-[40].

[9] The applicant notes that he had been remanded in custody since his arrest on 13 April 2022 and was granted bail by the District Court on 21 March 2023, which was revoked on 1 March 2024 due to his medical condition: Applicant’s First Affirmation, at [10]-[11].

[10] HKSAR v Kulemesin Yuriy, unrep., CACC 19/2010, 26 February 2010, per Tang VP (as he then was).

[11] Criminal Record Summary Part A, AB, 197-205. See items 9, 14, 19-21, 26, 28 and 30.

[12] Criminal Record Summary Part B, AB, 206-207. See also items 20 and 25 of Part A.

[13] HKSAR v Lau Man Kin [2010] 1 HKLRD 336, at [9].

[14] Applicant’s First Affirmation, at [9].

[15] The vehicle was lent to the applicant from his friend, Lau Ka-shun: AB, 12, at [3].

[16] Exhibits P1- P3 and P29A-P29C: AB, 5 and 12-13.

[17] The cautioned statement was confirmed in a post record and admitted by way of an admitted fact: AB, 13-14, at [6] and [11.1].

[18] Involving one transparent resealable plastic bag with 0.9 gramme of a solid containing 0.46 gramme of cocaine (Exhibit P6); one yellow and black-coloured transparent resealable plastic bag with 1.08 grammes of a solid containing 1.06 grammes of Ice (Exhibit P7); and one resealable plastic bag with 7.94 grammes of a solid containing 7.8 grammes of Ice (Exhibit P25). See also AB, 260-262 and 281.

[19] Including one glass bottle which was found to contain traces of Ice (Exhibit P12); three glass tubes with bulb shape (each was found to contain traces of Ice) (Exhibits P13A-P13C); and one resealable plastic bag, one silver metal pipe, and one grinder with residues of herbal cannabis. (Exhibits P14-P16). See also AB, 265-273.

[20] Including two other glass bottles (Exhibits P10-P11), two resealable plastic bags containing powder which turned out not to be a dangerous drug (Exhibits P4-P5); some tin foils (Exhibits P9 and P20); two digital scales (Exhibits P17 and P19); one lighter (P18); and a tin box containing 78 transparent resealable plastic bags (Exhibits P21-P24). See also AB, 258-259, 264, 274-280.

[21] The cautioned statement was confirmed in a post record and admitted by way of an admitted fact: AB, 13-14, at [8] and [11.2].

[22] AB, 14, at [11.3] and 154-186.

[23] Counters 108-111, 124-125 and 401.

[24] Counters 126-127, 145-147.

[25] Counters 129-182.

[26] Counters 183-204 and 235-243.

[27] The applicant’s responses in the VRI when being shown Exhibits P7 and P25. See Counters 245‑251 and 277-285.

[28] Counters 222-228.

[29] Counters 264-272.

[30] Counters 52-77. See also Exhibits P4 and P5; AB, 258-259. In the VRI, the applicant was also asked what Exhibit P6 was, to which he answered “medicinal powder” but it was later discovered to be cocaine (Charge 1). See Counters 78-85; AB, 187-188 and 260.

[31] Exhibits P12 and P36; AB, 14, at [12]; Reasons for Verdict, at [28].

[32] Prosecution Opening: AB, 10, at [6]. See also Reasons for Verdict, at [8].

[33] Applicant’s First Affirmation, at [5]. See also Counters 235-251 of the VRI and Defence’s Closing Submission, at [23]-[26].

[34] HKSAR v Ma Hoi Yan, unrep., CACC 62/2020, 16 October 2020, at [14].

[35] HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, at [38].

[36] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at [19].

[37] HKSAR v Wong Wai Wah, unrep., CACC 88/2024, 7 March 2025, at [8]. See also Applicant’s First Affirmation, at [6]; AB, 216-218, at [27]-[32].

[38] Reasons for Verdict, at [5]-[8].

CACC 88/2024, [2025] HKCA 240

On Appeal From [2024] HKDC 687 & 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 88 OF 2024

(ON APPEAL FROM DCCC NO 872 OF 2022)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Wong Wai Wah (王偉華)	Applicant

________________________

Before:

Hon Macrae Acting CJHC in Court

Date of Hearing:	18 February 2025
Date of Judgment:	18 February 2025
Date of Reasons for Judgment:	7 March 2025

_________________________________________

REASONS FOR JUDGMENT

_________________________________________

1. The applicant pleaded not guilty to one count of trafficking in dangerous drugs, namely, 0.90 grammes of a solid containing 0.46 grammes of cocaine, and 9.02 grammes of a crystalline solid containing 8.86 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1). He also pleaded guilty to one count of possession of dangerous drugs[1] (Charge 2) and one count of possession of apparatus[2] fit and intended for the inhalation of dangerous drugs (Charge 3), and was duly convicted on his own pleas. As for the dangerous drugs in Charge 1, the applicant offered to plead guilty to simple possession but this was not accepted by the prosecution. Following a trial before HH Judge Stanley Chan (“the judge”), the applicant was convicted of Charge 1 and was sentenced to 6 years and 3 months’ imprisonment for that charge.

2. By way of a Form XI Notice filed on 24 April 2024, the applicant sought leave to appeal against both his conviction and sentence in respect of Charge 1.

3. At the hearing of the application, I granted leave to appeal on Grounds 2, 3 and 4 of the Perfected Grounds of Appeal against Conviction but refused leave to appeal on Ground 1. I said that I would hand down my decision in due course, which I now do.

The prosecution case

4. At around 20:30 hours on 13 April 2022, the applicant was approached by police officers while he was in the driver’s seat of a private car parked outside Pok Tai House in Pok Hong Estate, Shatin. The vehicle did not belong to the applicant. The police searched the applicant and seized two rolls of cannabis[3] in a Marlboro cigarette packet, which was found inside the applicant’s cross-body bag. The applicant’s wallet and a separate amount of cash of $11,570 were also found in his cross-body bag. The applicant was arrested for taking a conveyance without authority and possession of dangerous drugs. Under caution, he said, “For the car, I had some argument with (my) friend. The two rolls of cannabis are for my own consumption”[4].

5. Following his arrest, the police searched the applicant’s residence at Room 1514 of Pok Tai House. The following items were found in and seized from the applicant’s bedroom[5]:

Relevant to Charge 1
(i)  1 re-sealable plastic bag with 0.9 grammes of a solid containing 0.46 grammes of cocaine[6];
(ii)  1 re-sealable plastic bag with 1.08 grammes of a solid containing 1.06 grammes of “Ice”[7];
(iii)  1 re-sealable plastic bag with 7.94 grammes of a solid containing 7.8 grammes of “Ice”[8];
Relevant to Charges 2 and 3
(iv)  3 glass bottles[9], one of which contained 0.09 grammes of “Ice” within 63 millilitres of liquid[10];
(v)  1 glass tube containing 0.09 grammes of “Ice” within 0.14 grammes of a solid[11];
(vi)  2 glass tubes both containing “Ice” within solids totalling 0.09 grammes[12];
(vii)  1 metal pipe containing 0.10 grammes of herbal cannabis[13];
(viii)  1 re-sealable plastic bag containing 2.55 grammes of herbal cannabis[14];
(ix)  1 grinder containing 0.10 grammes of herbal cannabis[15];
Others
(x)  2 re-sealable plastic bags containing powder, which turned out not to be a dangerous drug[16];
(xi)  Tin foils[17], 2 digital scales[18], and 3 re-sealable plastic bags each containing around 20-30 smaller re-sealable plastic bags[19].

6. At around 23:00 hours on 13 April 2022, the applicant was arrested for trafficking in dangerous drugs. Under caution, he responded, “The dangerous drugs are for my own consumption. I did not sell dangerous drugs. Also, it has nothing to do with my wife and grandchild.”[20]

7. On 14 April 2022, the applicant attended a video-recorded interview (“VRI”) and maintained that all of the drugs found were for his own consumption. He admitted that he had been a drug addict for more than a decade, consuming one gramme of “Ice” per day[21]. He also took cannabis and cocaine[22]. The applicant described how he used the apparatus to consume the drugs[23]. He recalled buying cannabis and “Ice” from an Indian or Pakistani national named “ON”. However, he had no way to contact this person but would simply come across him in Chungking Mansions in Tsim Sha Tsui[24]. The applicant said the price for “Ice” was $2,000 for a bag of 7 grammes[25]. The electronic scales were to prevent drug suppliers from cheating him by weight[26]. The re-sealable plastic bags were for dividing the “Ice” in order to prevent an overdose[27]. In addition, the applicant identified 2 re-sealable plastic bags which he said did not contain dangerous drugs (Exhibits P4 and P5)[28].

8. On the glass bottle that contained a quantity of “Ice” in liquid form (Exhibit P12), a mixture of DNA from three different persons was identified, with the applicant being one of the sources[29]. The street value of the “Ice” and cocaine in Charge 1 was between $5,978 and $6,650[30].

The defence

9. The applicant elected not to give evidence or call any defence witness. He relied on his cautioned statements and VRI.

The verdict

10. The judge concluded that the evidence led him to the irresistible and reasonable inference that the applicant possessed the dangerous drugs in relation to Charge 1 for trafficking:

“21. It was submitted that ‘if the defendant’s case or the defendant’s statements in the VRI were true or might have been true, then such benefit of a doubt must be given to him. Even if the defendant’s case was entirely rejected, the prosecution still bears the burden to prove its case beyond a reasonable doubt’…
25. I have considered all the points raised by the defence counsel. I do not accept what was said by the defendant in his cautioned statement and VRI trustworthy.
26. He mention that he bought the ice from the Indian or Pakistani national and yet he could not have any means to contact him. He does not quite remember them (entry 200) but said it was easy to bump into him (entry 202). He remembered he paid $2,000 for the latest purchase as it was bought ‘last week’ (entry 281 and 285). There are 2 small plastic bags containing non-drug stuff. The defendant recognised them right away and said they were baking soda for cooking and medicinal powder respectively. These 2 bags have orange and blue opening respectively.”

He then described the other items found at the applicant’s home[31] and said of the grinder (Exhibit P16):

“27. …The defendant at first mentioned that it was for grinding ‘Ice’ but immediately corrected that and said it was to grind cannabis buds (entry 218 of the transcript of the VRI, P32B). The chemist did find 0.1 gramme of cannabis in herbal form on the grinder.”

Of the mixture of DNA, the judge commented:

“28 …Of course, the DNA findings cannot be used to implicate the defendant that he was trafficking in a dangerous drug but it shows the DNA did not originate from only one individual…”

Finally, the judge said:

“29. A drug user can be a drug trafficker. The defendant left home with cash in the sum of over $10,000. The stack of cash was not found inside the defendant’s wallet but in his cross body bag. The defendant said he had a dispute with his friend and hence he was able to ‘borrow’ the Mercedes-Benz C-Class car from his friend with the licence expiry date of 28 January 2023 (photo 73 of the album). The defendant claimed in the VRI that he bought a packet of 7 grammes for $2,000 about one week before his arrest. And yet, the police seized one plastic bag which contained 7.94 grammes of a solid containing 7.8 grammes of methamphetamine, not to mention there was another smaller bag of 1.08 grammes of a solid with 1.06 grammes of methamphetamine … If what the defendant said about the scales was true, then he got more Ice (that is 7.94 grammes of a solid instead of 7 grammes) that he had bought. There were also a total of 78 small plastic bags which were contained in 3 larger plastic bags.”

11. The judge accordingly convicted the applicant on Charge 1.

Mitigation and sentence

12. The applicant was 54 years old at the time of sentence. It was said during mitigation that the applicant had been educated up to Form 1 level and was working as a renovation worker, earning about $20,000 a month. From 1999 to 2021, he had been convicted of possession of dangerous drugs numerous times. Furthermore, in 2006, the applicant had been sentenced to 4 years and 8 months’ imprisonment for an offence of trafficking in dangerous drugs.

13. Defence counsel invited the judge to find that a significant portion of the drugs under Charge 1 was for his own consumption and to grant the applicant a sentencing discount of 25%[32]. Counsel further argued that a discount should be granted for the applicant’s sensible conduct in substantially agreeing to the prosecution case[33].

14. The judge found no major mitigating factors in the case. After using the 8.86 grammes of “Ice” as the main drug for Charge 1 and applying the relevant guidelines, he arrived at a starting point of 6 years and 3 months’ imprisonment. In respect of the 0.46 grammes of cocaine, the judge enhanced the sentence by 3 months, to 6 years and 6 months’ imprisonment. He considered that “some ‘Ice’ or cocaine” may be for the applicant’s own consumption and accordingly reduced the sentence by 3 months to 6 years and 3 months’ imprisonment. As for the applicant’s conduct in saving time at trial, the judge pointed out that this had stemmed from the applicant’s intended guilty plea to simple possession under Charge 1[34].

The grounds of appeal against conviction

15. Mr Christopher Grounds, for the applicant at this application and at trial, advanced four grounds of appeal against conviction:

(i)  The judge erred in law and appeared to direct himself that the applicant’s statements upon arrest and in the VRI had to be “trustworthy” to be accepted. (Ground 1)
(ii)  The judge erred factually, and in law, in rejecting the applicant’s explanation that the dangerous drugs were for his own consumption. Further, he erred in drawing the only irresistible inference that the applicant possessed the drugs in Charge 1 for trafficking. (Grounds 2 and 4)
(iii)  The judge erred in law by failing to discharge his duty so as to give clear, precise and/or adequate reasons for convicting the applicant of drug trafficking. (Ground 3)

Ground 1 (conviction)

16. The applicant complains that by stating that he did not find the applicant’s account trustworthy, the judge had imposed a higher standard of proof on the applicant and deviated from the Liberato direction, which required the applicant to be acquitted if his account may or might be true, even if it was not believed. Mr Grounds argues that the judge had placed a positive evidential burden on the applicant.

17. Counsel submitted that this argument was supported by HKSAR v Chan Pak Hang[35]. In that case, the Court of Appeal held it was erroneous to reject the defendant’s evidence simply because it was implausible and coincidental. Such approach was in conflict with the established burden and standard of proof in a criminal trial. The Court in Chan Pak Hang stated that the word “plausible” meant “apparently acceptable or trustworthy”, as defined in the New Shorter Oxford English Dictionary. He added that this argument stands even though the judge at paragraph 18 of the Reasons for Verdict did say that the applicant had no duty to prove anything.

Grounds 2 and 4 (conviction)

18. Grounds 2 and 4 criticised the judge’s reasoning, contending that the evidence in this case should have led to an acquittal of the trafficking charge. It was submitted that, since the judge convicted the applicant on almost undisputed circumstantial evidence[36], the Court of Appeal was in an equally good position to evaluate the evidence.

19. That evidence, so it was argued, pointed to a strong case of simple possession. The applicant’s telephone, residence and the private car were all searched by the police, but no direct evidence of drug trafficking was found. On the contrary, the applicant’s statements under caution upon arrest and in his VRI, the items found on him and in his residence, and his long history of drug abuse were all consistent with a case of possession for own consumption. Even the prosecution were prepared to admit that the applicant possessed some drugs purely for his own consumption, at least so far as the drugs in Charge 2 were concerned. Accordingly, there was no sufficient basis to draw the only and irresistible inference of trafficking.

20. Mr Grounds further complained that the judge did not make any specific findings as to which parts of the applicant’s account he rejected. It was, therefore, wrong to reject the applicant’s account in its entirety, since many of his explanations were unimpeachable.

Ground 3 (conviction)

21. As an extension of Ground 2, Ground 3 took issue with the judge’s reasoning, which is said to be inadequate. After summarising the defence submission and concluding that the applicant’s account was to be rejected, the judge merely recited the evidence without clearly setting out what he relied on to convict or explaining how he reached the verdict. This, it was argued, had made it difficult, if not impossible, to understand why the judge had ultimately convicted the applicant.

The respondent’s submission on conviction

22. In respect of Ground 1, Mr Derek Wong, on behalf of the respondent, pointed out that the judge gave himself a Liberato direction at paragraph 21 of his Reasons for Verdict. He submitted that, by using the word “trustworthy”, the judge was merely saying the applicant’s account under caution was not believable and he did not believe it. It did not mean that the judge applied the wrong burden and standard of proof.

23. This case may be distinguished from Chan Pak Hang[37], where the defendant elected to give evidence, which bore a very different weight to assertions in a VRI. Unlike the judge, who clearly stated that he did not believe the applicant’s account, the trial judge in Chan Pak Hang was ambiguous as to what he believed or accepted. Further, there was nothing to suggest that the trial judge in Chan Pak Hang had been mindful of Liberato. Referring to Stock JA’s dissenting judgment in Chan Pak Hang, the respondent submitted that the real question was whether the judge disbelieved the defence and whether he had good reasons for doing so.

24. As for Grounds 2 and 4, the respondent argued that the evidence as a whole was sufficient to rebut a case of simple possession and to convict the applicant of trafficking. In particular, there were three pieces of especially incriminating evidence:

(i)  Cannabis and cash over $10,000 were found in the applicant’s cross-body bag.
(ii)  The DNA mixture found on the glass bottle showed that the applicant had been sharing drugs with others.
(iii)  The sheer number and quantity of inhaling apparatus, electronic scales and re-sealable plastics bags suggested this was not a case of simple possession.

25. Regarding Ground 3, Mr Wong submitted that the judge’s reasoning was sufficient. The judge had listed the circumstantial evidence he relied on to draw the irresistible inference of trafficking. Although the judge did not discuss each piece of evidence in detail, he did cite those which were commonly associated with trafficking cases.

The grounds of appeal against sentence

26. The applicant’s grounds against sentence reiterated those mitigating factors submitted at sentence. First, this was a case where a significant proportion of the drugs were obviously for the applicant’s own consumption. Authority dictated that a 10% to 25% reduction should be given in such circumstances[38]. It was complained that the 3-month reduction given by the judge only amounted to 3.8% discount and was inadequate. By simply regarding some “Ice” and cocaine as possibly for his own consumption, the judge failed to conduct a proper analysis and never made a specific finding as to whether a significant proportion of drugs was for his own consumption.

27. Secondly, the judge erred in not giving any credit for the way the applicant had conducted the trial by agreeing to almost all of the prosecution evidence. But for the judge’s insistence on calling the arresting officer, the trial could have proceeded without any live witnesses at all.

The respondent’s submission on sentence

28. In response to Ground 1 and the complaint of inadequate reduction for the applicant’s own consumption, Mr Wong submitted that the judge clearly rejected the notion that a significant proportion of the drugs were for his own consumption. Furthermore, there was no evidential basis for the judge to reach an alternative finding.

29. As for Ground 2, the respondent contended that the sentence reduction for the way he conducted the trial was a matter wholly within the judge’s discretion: there was no authority for a mandatory discount in sentence. Moreover, it was the duty of counsel to effectively manage the conduct of the trial and the time used. In any event, not much time was saved by the applicant.

Consideration

30. I do not regard Ground 1 of the appeal against conviction as arguable, let alone reasonably arguable. Although there was at one stage a faint suggestion from Mr Grounds that this ground may be a matter of law which does not, therefore, require leave, that cannot, with respect, be correct on a plain reading of the impugned passage in the judge’s Reasons for Verdict. What the judge said was[39]:

“I have considered all the points raised by the defence counsel. I do not accept what was said by the defendant in his cautioned statement and VRI trustworthy”. (Emphasis supplied)

The adjective “trustworthy” was used in relation to what the applicant had said under caution (upon arrest and in interview) and was the judge’s finding in relation to the applicant’s assertions, unsupported as they were by his evidence. As such, the point was derived from the facts and was an assessment of what was produced in evidence as Exhibit P32A and 32B. It cannot be a point of law; nor to my mind is it even a point of mixed law and fact. It is a simple factual finding about a piece of evidence.

31. As for the meaning of the word itself, the Shorter Oxford Dictionary defines the word “trustworthy” as, inter alia, “reliable”. The judge was not saying that the applicant himself was untrustworthy or unreliable because he was a defendant; nor was he saying he had to find that the applicant was trustworthy before he could accept his assertions. He was simply making a finding that what was said by the applicant in his cautioned statement and VRI was unreliable. In the ensuing paragraphs, he went on to explain why.

32. I therefore refused leave on Ground 1. In doing so, I should remind the applicant that he has the right to renew this ground of appeal before the Court of Appeal, but he should nevertheless be reminded of the Court’s power to consider loss of time if it considers that the point should not have been reargued.

33. In respect of Grounds 2, 3 and 4, I was prepared to grant leave on the basis that the grounds are reasonably arguable. Although essentially a factual appeal, it is reasonably arguable that the applicant should have been convicted of simple possession rather than unlawful trafficking.

34. I shall also grant leave to appeal against sentence, although I should say that Ground 2 of the perfected grounds of appeal against sentence is only likely to gain traction if the Court were to agree that the applicant should have been convicted of simple possession rather than trafficking.

(Andrew Macrae)
Acting Chief Judge
of the High Court

Mr Derek Wong SPP of the Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Betty Chan & Co, assigned by the Director of Legal Aid and Ms Tsang Sze Hang, Cecilia, engaged with the permission of the Director of Legal Aid pursuant to the Scheme under the Patrick Yu Memorial Scholarship of the Hong Kong Bar Association, for the Applicant

[1] Involving 3.18 grammes of cannabis in herbal form, 0.14 grammes of a crystalline solid containing 0.09 grammes of “Ice”, 0.09 grammes of a solid containing “Ice” and 63 millilitres of liquid containing 0.09 grammes of “Ice”.

[2] Involving 3 glass tubes, 3 glass bottles and a metal pipe.

[3] The two hand rolled cannabis “cigarettes” later formed part of Charge 2.

[4] Admitted Facts at [3]-[6], Appeal Bundle (“AB”), pp 12-13; Second Admitted Facts at [3], AB, pp 16-17; Reasons for Verdict at [15], AB, pp 24-25; Police Notebook, AB, pp 71-72.

[5] Admitted Facts at [7], AB, p 13.

[6] Exhibit P6.

[7] Exhibit P7.

[8] Exhibit P25.

[9] Exhibits P10, P11, & P12.

[10] Exhibit P12.

[11] Exhibit P13A.

[12] Exhibits P13B and P13C.

[13] Exhibit P15.

[14] Exhibit P14.

[15] Exhibit P16.

[16] Exhibits P4 and P5.

[17] Exhibits P9 and P20

[18] Exhibits P17 and P19.

[19] Totalling 78 re-sealable plastic bags (3 big bags and 75 small bags). See Exhibits P22, P23 and P24.

[20] Admitted Facts at [8], AB, p 13.

[21] VRI transcript at [108]-[111], [124]-[125], [401], AB, pp 165, 166 & 186.

[22] VRI transcript at [126]-[127], [145]-[147], AB, pp 166 & 167.

[23] VRI transcript at [131]-[182], AB, pp 166-170.

[24] VRI transcript at [183]-[204], [235]-[243], AB, pp 170, 171 & 174.

[25] VRI transcript at [244]-[251], AB, pp 174 & 175.

[26] VRI transcript at [222]-[223], AB, p 173.

[27] VRI transcript at [265], AB, p 176.

[28] VRI transcript at [52]-[77], AB, pp 161-163. During the VRI, the applicant was also asked what Exhibit P6 was, to which he answered “medicinal powder”. However, the powder in P6 turned out to be cocaine. See VRI transcript at [78]-[85], AB, p 163; List of Exhibits, AB, pp 187-188; and the photograph of Exhibit P6, AB, p 260.

[29] Reasons for Verdict at [28], AB, p 32 C-F.

[30] Reasons for Verdict at [8], AB, p 23E-F.

[31] Reasons for Verdict at [27], AB, p 31M-S.

[32] Transcript of Mitigation, AB, pp 44R-46D.

[33] Transcript of Mitigation, AB, p 46E-T.

[34] Reasons for Sentence at [20]-[25], AB, pp 39-40.

[35] HKSAR v Chan Pak Hang (Unrep., CACC 18/2003, 6 May 2003).

[36] The exception being whether the defendant’s unseized wallet was found inside his cross-body bag upon arrest.

[37] HKSAR v Chan Pak Hang (Unrep., CACC 18/2003, 6 May 2003)

[38] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

[39] AB, p 31E-F.

HKSAR v. WONG WAI WAH

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