R. v. Leung Wing Fai

CACC000178/1995

IN THE COURT OF APPEAL

1995, No. 178

(Criminal)

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Coram: Hon Power, Ag. C.J., Bokhary and Mayo, JJ.A.

Date of hearing: 5 September 1995

Date of judgment: 5 September 1995

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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 and against the sentences of imprisonment which were imposed which resulted in his being sentenced to 7 years' imprisonment.

2. He was charged with three offences. The first two were for trafficking in dangerous drugs and the third was for being in possession of apparatus used for the injection of dangerous drugs.

3. Two police officers searched the applicant when they saw him at the lobby on the 10th floor of the building where he resides. They found a cigarette packet containing what appeared to be dangerous drugs. When he was cautioned the applicant admitted that it was "white powder" and that he was conveying it for someone.

4. The officers then took the applicant to his flat and conducted a search. The applicant opened a green rusty box by a code lock which was found to contain the implements referred to in the 3rd charge and further packets containing what appeared to be dangerous drugs.

5. It subsequently transpired that the packet found in the cigarette box contained a mixture weighing 14.58 grams and containing 4.89 grams of salts of esters of morphine and the packets in the metal box contained a mixture weighing 58.45 grams of a mixture containing 18.93 grams of salts of esters of morphine.

6. The applicant after being duly cautioned signed the statement which was prepared by the police officer which recorded what had transpired. He also answered questions under caution.

7. At his trial he contested the admissibility of this statement. The trial judge after hearing evidence from the police officers and the applicant was satisfied at the appropriate level that the statement had been made voluntarily and admitted it as evidence.

8. The applicant did not give evidence at the trial itself. Having regard to all of the evidence which was before him the judge found all the charges to have been proved.

9. Before us he claimed that there was no evidence besides the contents of his cautioned statement to prove that he had been trafficking in dangerous drugs. He also claimed that there were conflicts in the evidence of the police officers. One of them claimed that he had said that he was illiterate whereas the other one had said that he was educated up to Form 3. This overlooks the fact that the police officers would have placed reliance upon what they were told by the applicant. He agreed that he had signed the statements.

10. In coming to the conclusion that he did that he was in possession of dangerous drugs for the purpose of trafficking the trial judge had regard to all of the surrounding circumstances and all of the available evidence. There are no grounds for believing that the conviction was in any way unsafe or unsatisfactory, and the application for leave to appeal against conviction is dismissed.

11. The applicant also seeks leave to appeal against the sentence of 7 years' imprisonment which was imposed upon him. The sentence came within the guidelines referred to in Lau Tak-ming. The weight for 23 grams of narcotic substance is between five to eight years. Although the sentence which was passed was on the high side it is not sufficiently high that it would justify our interfering with it. We also take cognisance of the fact that the syringes were found at the same time. The application for leave to appeal against the sentence which is imposed is also dismissed.

Representation:

Mr DG Saw & Ms Polly Wan for Crown Prosecutor

LEUNG Wing-fai, Applicant - in person/present