The Queen v. Kwong Chak Man

CACC000152/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Power & Penlington, JJ.A.

Date of hearing: 24th June, 1988.

Date of delivery of judgment: 24th June, 1988.

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J U D G M E N T

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Penlington, J.A.:

1. This is an application for leave to appeal against conviction by Barnes J. and a jury on a count of possession of a very substantial quantity, some 2.27 kilogrammes, of heroin on the 6th September 1986 in Tsz Wan Shan, for the purpose of unlawful trafficking.

2. The evidence relied upon by the Crown was observation by police officers who saw the applicant handed a bag by another man, Law Wai Tung, who was jointly charged and pleaded guilty to the same offences. This bag contained the heroin which was the subject: of the charge. The applicant, who gave evidence, did not deny being given the bag and the sole issue for the jury was whether the applicant knew what was in it.

3. Law Wai Tung was a co-tenant of the applicant of domestic premises and in respect of his evidence the trial judge very clearly told the jury that he was an accomplice and that, although he had given evidence in which he said that he told the applicant that there were drug in the bag, they should look at all his evidence with the greatest suspicion. Indeed he said that the evidence of Law, as the trial had proceeded, "was of no practical importance whatever, and that the Crown did not rely on it." The only point which was in issue at the trial was did the applicant know what was in the bag and the Gown relied on the presumption in Section 47(1) of the Dangerous Drugs Ordinance Cap. 134 to prove that he did know unless he could satisfy the jury, on a balance of probabilities, that he did not. It was put to the jury in the clearest possible way that this was entirely a matter for them to decide, having considered all the evidence and in particular that of the applicant.

4. Various matters had been raised by the applicant before us today mainly in relation to the evidence of Law, but they do not in our view contain anything to raise any doubts as to that central issue, the applicant's knowledge, which was a matter for the jury. We do not think that the judge was in any way in error in the way he directed the jury who, on the evidence, were perfectly entitled to come to the conclusion they did.

5. The application for leave to appeal is refused.

Representation:

Applicant in person

Peter Cahill for Crown/Respondent