The Queen v. Lam Chun Hoi

CACC000172/1989

BETWEEN

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Coram: Silke, Ag.C.J., Kempster, J.A. & Bewley, J.

Date of Hearing: 8 February 1990

Date of Judgment: 8 February 1990

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. The applicant, Lam Chun Hoi, appeared for trial before His Honour Judge Wesley Wong in the District Court on a single charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The particulars were that on 29th October 1988 at the corridor outside Room 201 of Lok Wai House, Tsz Lok Estate, Tsz Wan Shan, he had in his possession a dangerous drug 200.27 grammes of a mixture containing 12.17 grammes of salts of esters of morphine.

3. He was convicted after trial and sentenced to a period of 5 years' imprisonment. He now seeks leave to appeal against both that conviction and, if necessary, the sentence.

4. A patrolling police party saw the applicant with a yellow plastic bag in his right hand. It was the Crown's case that the applicant then entered Block 6 of Tsz Wan Shan Estate. They followed, momentarily lost sight of him but sighted him again outside Room 201. There he was stopped and searched. In the yellow bag was found a single sealed packet. In that packet were the drugs specified in the particulars of charge.

5. A constable gave evidence that when the applicant was arrested he stated that the drugs were for his own consumption. The party then went to room 205, where the applicant lived, searched it and found 17 small plastic bags.

6. The applicant himself gave evidence. He has in the past had his left leg and his right foot amputated and the first and second phalanges of his right index finger are missing. He denied that anything had been found upon him. He stated, as he has stated to us today in support of his grounds of appeal that, because of his disabilities, he could not carry anything. It was suggested that the police had picked up the bag elsewhere and in fact framed him.

7. The plastic bags found in his residence were those used by the children of his brother and sister-in-law. He went on to say that he had been stopped searched on various previous occasions when nothing was found upon him and on the last of those occasions one of the stop-searchers was one of the present arresting constables. That particular constable had become angry because nothing had been found and this would appear to have been advanced as the reason for the plant.

8. There was called in evidence by the applicant his sister-in-law, this in respect of the plastic bags and the use to which they were put.

9. Both the applicant and his witness were disbelieved and the trial judge found the policemen to be witnesses of truth. Hence the conviction.

10. In his Reasons for Verdict - of which we note the certified true copy is dated 14th April 1989, the conviction being on 13th March - the trial judge started off by making reference to the "facts of the case" being in effect the prosecution evidence. Perhaps an unfortunate way of opening Reasons for Verdict. But of more consequence is that, in stating why he disbelieved the evidence of the sister-in-law, he said this:

"As to the witness he called, her evidence was equally unconvincing. It is inconceivable that her children would like to cut up apples and pears and play with them by putting them into the plastic bags. It is also unlikely that her children would put the caps of soft drink bottles into such small bags. Again I reject her evidence." (Emphasis supplied)

11. In The Queen v. Wong Lam Kin, Criminal Appeal No.88 of 1989 (unreported), this Court found it necessary to comment adversly upon the use of the same word "inconceivable" by another judge of the District Court in his Reasons for Verdict. To none of the members of this Court is it "inconceivable" that children would do the things that the sister-in-law said they had done.

12. Later, in his Reason for Sentence, the trial judge made reference to the applicant's asking his sister-in-law to give evidence as "ludicrous". The use of such emotive word do not enhance Reasons for Verdict but do cause this Court some alarm as to the whether or not the judge who used them has evaluated properly the evidence before him.

13. That having been said, the evidence here of the police officers was straight forward and certainly open to being accepted by the trial judge as evidence of the guilt of the applicant. In those circumstances, we are not prepared to upset this conviction which was fully justified on the evidence and that application is refused.

Sentence (having heard the applicant)

14. A background report would be of assistance to this Court. One will be requested and the matter of sentence is adjourned to a date to be fixed.

Representation:

Applicant - in person

I.G. Cross, Esq. & W.S. Cheung, Esq. for Crown/Respondent