HKSAR v. Li Yiu Ping

CACC000153/2000

CACC 153/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.153 OF 2000

(ON APPEAL FROM DCCC NO. 1198 OF 1999)

Coram: Hon Stuart-Moore, Ag. CJHC, Wong and Woo JJA in Court

Date of Hearing: 18 August 2000

Date of Judgment: 18 August 2000

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. The Applicant (D1) was jointly charged with Lau Shui-leung (D2) with one charge of trafficking in dangerous drugs, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. They were tried and convicted before Judge Toh in the District Court. The Applicant was sentenced to imprisonment for 5 years and 2 months. We are only concerned with the Applicant's application for leave to appeal against his conviction.

2. The particulars of offence are as follows:-

" LI Yiu-ping and LAU Shui-leung, on the 31st day of August, 1999, at Flat C, 22nd Floor, Block 2, Sheung Shui Centre, Sheung Shui, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 64.92 grammes of a mixture containing 11.64 grammes of heroin hydrochloride and 426 tablets and 3 tablet fragments containing a total of 2.86 grammes of clonazepam."

3. The prosecution case was a simple one. In the early hours of 31 August 1999, the police saw the Applicant coming down the stairs of Block 2 of Sheung Shui Centre. He was stopped and searched and 11 packets of white powder were found on him. The Applicant admitted that the white powder was his but it was for his own consumption. He told the police that he had just left the flat in which D2 was later found and he had spent the night there. He was also found in possession of three keys which opened the metal grille and the wooden door to the flat in question and the third key opened the door of the bedroom which D2 claimed to be his. Inside that bedroom a large amount of money and a postal weighing scale were found. It was also admitted by the Applicant that when he was in the flat he did see the drugs which were on the floor in the living room and he knew that they were white powder.

4. In the records of interviews of both D2 and the Applicant, they agreed that they knew each other very well. The Applicant said that he was in the flat because he was given the keys by a friend of his and D2 who was not well and he went up there to help him tidy up and buy things. D2 also said that he was not feeling well at the time. The fingerprints of the Applicant were found on the coffee table and a bottle of water in the flat.

5. The judge considered that the issue was whether the Applicant was inside the flat, and there was no doubt that he was and whether he was helping D2 to package the drugs inside the flat. She said that the fact whether D2 was not feeling well was not an important factor. At p.17-O to p.18-B the judge made these comments : -

"D1 said in his cautioned statement that he spent at least overnight inside the flat, he saw the drugs on the floor, apart from that he had keys to the premises and his fingerprints were found on the coffee table and a bottle of water, the large amount of drugs that were found and the way it was being packaged on the floor, leads me to the only conclusion, the only irresistible inference is that D1 was indeed helping D2 to package these drugs for the purposes of sale or supply.

So I have no doubt in my mind that D1 was equally guilty of possession of these drugs for trafficking that were found inside the flat. And when I say 'drugs' in the case of D1, I mean the white powder."

6. The judge also convicted the Applicant of simple possession in relation to the 11 packets found on his person. There are two grounds in the perfected grounds of appeal which were argued before us by Mr Chan on behalf of the Applicant. For the sake of convenience, the two grounds can be dealt with together. These are :

1. While the Appellant elected not to give evidence in the trial, the learned judge was bound to consider both the inculpatory and exculpatory parts of the cautioned statement and video-taped interview of the Appellant in deciding where the truth laid. The Learned Judge erred in law in failing to consider adequately the exculpatory part and misdirected herself that the explanation of the Appellant about why he went to the 2nd Defendant's flat was unimportant thereby rendering the conviction unsafe and unsatisfactory.

2. The Learned Judge erred in finding that taking the evidence of the prosecution as a whole, the only irresistible inference was that the Appellant was helping the 2nd Defendant in this case to package the drugs in the premises where the 2nd Defendant lived for the purposes of sale and supply, while the said inference could not be the only inference that could be drawn from the facts.

7. The third one was a round-up ground complaining that the conviction was unsafe and unsatisfactory.

8. We are satisfied that there was no substance in these grounds. It is quite clear from the Reasons for Verdict that the judge had considered both the inculpatory part and the exculpatory part of the cautioned statement and it is quite plain that she rejected the explanation of the Applicant in the face of overwhelming circumstantial evidence. There was no evidence that there were other occupants of the flat. If the Applicant was given the keys to the flat to look after his sick friend, there was no need to give him the key to the bedroom of D2. It would serve the purpose if he was given the keys of the iron grille and the front door. It was most unlikely that D2 would lock up his bedroom while he was resting or sleeping there. Would D2 have allowed the Applicant unlimited and unrestricted access to his bedroom even when he was out of the premises bearing in mind the large amount of cash in the sum of nearly $39,000 in that bedroom and the fact the Applicant was, on his own admission, a drug addict?

9. In our view, the circumstantial evidence identified by the judge amply justifies the judge to draw the inference that she did.

10. We are satisfied that the conclusion drawn by the judge from the evidence is a correct one and the only one that was open to her to draw. There is nothing to cause us concern that the conviction was in any way unsafe or unsatisfactory. Accordingly, the application is dismissed.

Representation:

Mr P K Madigan, SGC, of the Department of Justice, for the Respondent

Mr Chan Siu Ming, instructed by the Legal Aid Department, for the Applicant