R. v. Ho Kim Hung

CACC000190/1996

IN THE COURT OF APPEAL

1996, No. 190
(Criminal)

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

Date of hearing: 20 November 1996

Date of judgment: 20 November 1996

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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 being in possession of dangerous drugs.

2. At the time of the offence which occurred on 13 July 1995 the applicant was a passenger in a taxi together with his wife. They were going to St. Teresa's Hospital. The taxi was stopped at a road block which was manned by the police.

3. The police officers observed that the applicant appeared to be nervous. He seemed to be attempting to conceal a waist bag. Their suspicions were aroused and a body search was conducted. Some red laisee packets were found in the waist bag. There were transparent bags in the packets. According to the police officers the applicant admitted that there was white powder in the bags. The statement post-recording this admission was ruled by HH Judge Longley to be inadmissible.

4. The reason he gave for this ruling was that the taxi driver who gave evidence at the trial did not recollect the applicant making such an admission. The judge who found the taxi driver to be a truthful and reliable witness considered that having regard to all the circumstances it was unlikely that the taxi driver would not have remembered it if such an admission had been made.

5. The applicant gave evidence to the effect that the dangerous drugs had been planted on him by the police. He said that the laisee packets had been on the floor of the taxi.

6. For the reasons given by the judge he accepted the evidence to the effect that the dangerous drugs had been found in the waist bag.

7. Although the amount of dangerous drugs was quite substantial being 135.94 grams of a mixture containing 23.66 grams of heroin hydrochloride he was in all the circumstances prepared to accept that the prosecution had not proved that the applicant was trafficking in dangerous drugs. He did however convict him of possession of dangerous drugs.

8. In his grounds of appeal the applicant states:

(1) that the trial judge was prejudiced against him;

(2) that the trial judge took side with the prosecution and prosecution witness;

(3) that the prosecution actually conspired with the witness to frame him up;

(4) that the trial judge was unfair.

9. However prior to the hearing before us the applicant lodged detailed grounds of appeal. We think it can accurately be stated that we are being invited to revisit most of the factual issues which were before the judge. These were all matters which either were or should have been ventilated before the judge.

10. He was in a good position to assess the evidence as it was presented to him. There are no grounds to believe that this conviction is in any way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr. Veltro, S.C.C. for Crown Prosecutor

HO Kim Hung - Applicant in person/present