HKCFI 1066
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 225 OF 2018
||TSANG Yik-sang (曾易生)
||Deputy High Court Judge Bruce SC in Court
|Dates of Hearing:
||28 – 29 August, 2 September and 17 October 2019
|Date of Ruling and Sentence:
||17 October 2019
|Date of Reasons for Ruling and Sentence:
||8 June 2020
REASONS FOR RULING ON
NEWTON HEARING AND SENTENCE
1. The Accused, Tsang Yik Sang (hereafter “the Accused”) was committed for sentence before a Magistrate on 23 July 2018. He was committed on the basis of a charge sheet alleging trafficking in dangerous drugs. He came before this Court on 15 November 2018 before Deputy Judge Lee (as Lee J then was). At that hearing, the Court was informed that there was a dispute over the weight of the methamphetamine hydrochloride and heroin hydrochloride, which are two of the dangerous drugs averred in the charge sheet upon which he was committed. There was a subsequent hearing before Lee J on 24 June 2019, at which time a Newton hearing was ordered.
2. The basis for the dispute is that, whereas the charge sheet upon which the Accused was committed avers that the Accused unlawfully trafficked in 8.4 g of a crystalline solid containing 8.33 g of methamphetamine hydrochloride and 37.8 g of a mixture containing 31.1 g of heroin hydrochloride, these quantities are disputed. The Accused says that the weights for the methamphetamine hydrochloride should be 6.8 g of a solid and in relation to the heroin hydrochloride the correct weight should be 25.68 g. The basis for these assertions by the Accused comes from the witness statement dated 17 November 2017 of PC 18472, Mr Ho Man Chun, who acted as the Exhibits Officer in relation to the police activity which resulted in the seizure of the drugs from the Accused. In brief, in that statement, the officer asserts that the weight of 6.8 g for the methamphetamine hydrochloride and the weight for the heroin hydrochloride of 25.68 g were the product of the weights (including packaging) measured when the Accused was taken before the Duty Officer at the Cheung Sha Wan Police Station shortly after his arrest.
3. The weights in the charge sheet to which the Accused pleaded guilty and the facts admitted by the Accused on his committal for sentence before Mr Cheng Lim Chi sitting as a Permanent Magistrate on 23 July 2018, are derived from the Government Chemist Certificate for the analysis of those drugs. The weights of the other two dangerous drugs in the charge sheet in which the Accused admitted that he trafficked are not challenged.
4. The Newton hearing was held to determine the correct weights for the methamphetamine hydrochloride and the heroin hydrochloride in which the Accused trafficked. The narcotic content of these two drugs is the principal basis for sentence for trafficking in these kinds of drugs. Plainly, if the gross weights are less than the narcotic in the drugs, the subject of dispute must inevitably be less and, accordingly, the sentence would be lower based on those weights. The difference between the amounts averred in the charge sheet and that revealed in the statement of PC 18472 are, if true, sufficient to make a difference to the sentence of the Accused. The case for the Accused is that he should be sentenced on the basis of the lower weights revealed in that statement.
5. In order to fully understand the issues which arise and the basis for a proper determination of those issues requires an examination of the investigation, including the conduct of the Exhibits Officer and other officers at Cheung Sha Wan Police Station. It also requires an examination of how the matter unfolded during the hearing before the Magistrate when the Accused was committed for sentence.
6. In the course of the Newton hearing, PC 18472 and Station Sergeant Lee Chi Keung testified. In addition, pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, the Court read and received five witness statements of PC 18472 which were collectively designated P76, and three witness statements of Station Sergeant Lee designated as P77. The statements of two other witnesses, Station Sergeant Chan Siu Man and Station Sergeant Leung Kwok Piu, were also read and received pursuant to section 65B. Exhibit P80 is a document signed by counsel for both the prosecution and the Accused which describes the statements as “admitted”. I have proceeded upon the assumption that the statements were tendered pursuant to section 65B and were intended to be read and received in accordance with the terms of that section. There was also a set of Admitted Facts pursuant to section 65C of that Ordinance which is Exhibit 75. The principal effect of that set of Admitted Facts is to admit into evidence various documentary exhibits which are germane to the areas of enquiry undertaken in this hearing.
7. The Accused did not testify in the Newton hearing.
A warrant is executed
8. On 14 November 2017, police officers executed a search warrant at 3rd Floor, Sea Panorama Court, 561 – 563 Fuk Wa Street in Sham Shui Po. At the time of entry pursuant to the search warrant, Tsang Yik Sang and another female were present in the premises. The Accused was arrested in relation to the dangerous drugs found. The female appears was also arrested.
9. Inside one of the bedrooms, in a cabinet, the police found a bag which contained:
(1) 4 plastic bags containing a crystalline solid which contained methamphetamine hydrochloride;
(2) 3 plastic bags containing a mixture containing heroin hydrochloride;
(3) 3 foil packs containing a total of 30 tablets contained midazolam;
(4) 14 foil packs containing 136 tablets containing methadone;
(5) a quantity in 3 plastic bags of a substance which was not controlled;
(6) some empty transparent resealable plastic bags; and
(7) an electronic scale.
Next to the bag in the cabinet was a plastic bag containing cash amounting to $46,100.
10. The Accused was arrested and following a caution asserted “The dangerous drugs are for my own consumption only.”
11. The Accused submitted to a video recorded interview under caution and claimed that he was jobless and homeless and was surviving on payments under the CSSA scheme of $1600 per month. He told police he was employed by a gentleman by the name of Ah Keung to deliver drugs,in exchange for which the Accused was provided with food and a place to stay. The arrangement was, according to the Accused, that the Accused was to go to the park near the junction of Fuk Wa Street and Cheung Wah Street in Sham Shui Po to identify potential drug buyers. He was told by the potential buyers how much they wanted to buy and he would then go back to the address in which the drugs were found to obtain the relevant drugs and deliver the drugs to the buyers. As to the payment for the drugs, the Accused asserted that the payment was not received by him but by Ah Keung.
12. In this video, the Accused said that the empty plastic bags and the electronic scales found in the address at which the drugs were found was used for packaging the drugs following the receipt of the orders, to which reference has earlier been made. The Accused also told police that he was a drug addict and needed to consume between 1.5 g and 2 g of heroin per day and took ice on the basis of 0.3 g per day. The Accused admitted that he had already completed one round of transaction with respect to the drugs on the date of his arrest. He stated that this was the second time working for Ah Keung to deliver drugs.
13. The Accused also asserted in the video recorded interview that the cash seized in the premises where the drugs were found was owned by the female in the premises.
VALUE OF DRUGS SEIZED
14. The Summary of Facts provides an admission that the street value of the dangerous drugs seized in the premises was valued at $37,167. Although not stated in the Summary of Facts, I infer that the value agreed was upon the basis of the quantities of drugs asserted in the Summary. Even if the weights of the two principal drugs accords with the case for the Accused, the value of the drugs would be less than $37,167 but well in excess of $30,000.
EVENTS AT THE CHEUNG SHA WAN POLICE STATION
15. Following his arrest, the Accused, his then co-Accused and the police party, including the Exhibits Officer, went to Cheung Sha Wan Police Station. Standard police procedure requires an arrested person to be taken to the nearest police station so that a report of the arrest may be made. The Accused was taken by the police party before the Duty Officer at Cheung Sha Wan Police Station. That officer was Station Sergeant Lee Chi Keung. A report was made to Station Sergeant Lee. In drugs cases such as the present one, a further standard police procedure is for the drugs which are seized to be weighed. The language of Police General Order 32-04 (which was exhibited as P64) does not actually mandate the weighing of the drugs following the report but, rather, assumes that will be done. In any event, the evidence is that the exhibits were seized at the premises of the Accused were in fact weighed between 00:28 hours and 00:33 hours on 15 November 2017. Both police officers who testified say that the Accused and the co-Accused were present at the time the drugs were weighed.
16. The fact and time of the weighing together with what were said to be the results of that were recorded in the notebook of the Exhibit Officer,PC 18472. However, he did not do so immediately. He testified that he...