HKSAR v. Heung Wing Keung

CACC000175/1997

IN THE COURT OF APPEAL

1997, No. 175
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J. in Court

Date of hearing: 19 November 1997

Date of delivery of judgment: 19 November 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs.

2. On the evening of 25th September 1996 the Applicant was stopped and searched by two police officers. The officers gave evidence that they found on his person the dangerous drugs referred to in the charge which was 28.62 grammes of a mixture containing 22.46 grammes of heroin hydrochloride. They also found HK$43,300 in cash on him.

3. The Applicant admitted that he had the dangerous drugs. It was, though, his evidence that the dangerous drugs were for his own consumption. As to the money which was found on him, he claimed that it represented the proceeds of a bet he had placed with an off-course bookie that evening.

4. He described how he had won the money. He said that he had placed HK$500 on a combination of horses in 2 races.

5. His Honour Judge Christie, the Trial Judge, disbelieved his evidence and found that he had been trafficking in the dangerous drugs.

6. In this connection the Judge referred to the Applicant's evidence that he had paid HK$6,500 for the drugs and that it was an admitted fact that the value of the dangerous drugs was in excess of HK$27,000. He took into account the fact that the Applicant claimed that the purchase he had made had been a bulk purchase and that because of this the price was more favourable than would otherwise be the case. The Judge also took into account the fact that the valuation referred to in the admitted facts was what was described as a retail value.

7. The 1st ground of appeal related to the way in which the Judge considered the value of the dangerous drugs. Mr. Macrae for the Applicant contended that in the absence of expert evidence it was wrong for the Judge to have attempted to draw the inferences he did.

8. In particular Mr. Macrae complained that the difference between wholesale and retail prices for dangerous drugs was a matter of evidence.

9. The disparity between the amount the Applicant claimed to have paid for the dangerous drugs and the actual value was so great that the Judge was fully entitled to draw the inference he did. It was never established that this was a clear cut wholesale or retail situation.

10. It was eminently a matter to be determined by the Judge on the basis of all the evidence which was before him.

11. The 2nd ground relates to the way in which the Judge considered the Applicant's evidence of his gambling exploits.

12. The Judge had the advantage of observing the Applicant as a witness and would have had ample opportunity to assess his credibility as a witness. It is evident from his Reasons for Verdict that the Judge did understand the significance of the evidence which was being given and in the circumstances he cannot be criticised for rejecting it.

13. It does remain a fact that the Applicant was found with both a large quantity of dangerous drugs and a large sum of money and this of itself was highly suspicious. If the case is considered as a whole it is not surprising that the Judge made the findings he did.

14. There is one point though where the Judge was under a mistaken impression. So far as the combination or all-up bet was concerned there was no inconsistency in the Applicant's evidence in this connection.

15. Having regard to the findings concerning the value of the dangerous drugs found on him and the coincidence that he did have this large sum of money on him on his arrest, no Tribunal properly directed could have come to any other conclusion than that the Applicant had been trafficking in dangerous drugs. This is particularly the case if account is taken of the quantity of dangerous drugs found on the Applicant. It was virtually inevitable that the inference would be drawn that he had the dangerous drugs for the purpose of trafficking.

16. We can see insufficient reason to interfere with this verdict. The conviction is neither unsafe nor unsatisfactory and this application is dismissed.

Representation:

Mr. D.G. Saw, S.C. & Miss Denise Chan (D.P.P.) for Respondent

Mr. Andrew Macrae instructed by M/S Hau, Lau, Li & Yeung for Applicant