HKSAR v. Abid Gul @ Abid Gull @ Abid Naveed Butt and Another

CACC000024/1997

IN THE COURT OF APPEAL

1997, No. 24

(Criminal)

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Coram: The Hon. Power, V.-P., Mortimer, J.A., and Wong, J.

Date of hearing: 16 July 1997

Date of delivery of judgment: 16 July 1997

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J U D G M E N T

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Wong, J. (giving judgment of the court) :

1. The Applicants were each convicted after trial before Deputy Judge Pang, as he then was, and a jury of one count of Trafficking in a Dangerous Drug and sentenced to 8 years' imprisonment. They now seek leave to appeal against both conviction and sentence.

2. The prosecution case was that in the evening of 15 March 1996, a party of four police officers led by a sergeant kept observation from a rear staircase on the first and the second floors of No. 149 Cheung Sha Wan Road. About three to four minutes after they had taken up their positions, the two Applicants were seen approaching Flat D on the first floor. When the 1st Applicant was trying to open the wooden door of Flat D with a key, the officers rushed up to the Applicants and revealed their identity. The Applicants were searched. From the 1st Applicant's right trousers pocket, the police found a plastic bag wrapped in white tissue paper. The crystalline substance inside the plastic bag was later found, upon analysis, to be 26.87 grammes of methamphetamine hydrochloride or ice as it is commonly known, the subject matter of the first count. From the right side pocket of the 2nd Applicant, two transparent plastic bags were found. These two plastic bags contained a white crystalline substance wrapped in white tissue paper and upon analysis by the Government chemist was found to be 26.10 grammes of ice. This forms the subject matter of the second count. A key which fitted the wooden door of Flat D and a Pakistani passport were also found on the 2nd Applicant.

3. Both Applicants elected to give evidence.

4. The 1st Applicant said that he had been to Flat D on the first floor twice before because a Pakistani friend of his called Raja lived there. He went to the flat on the 15th at the request of Raja to prepare dinner for Raja and a number of his friends who were expected to arrive at the flat later in the evening. Shortly after he arrived at the flat and went into the kitchen to start cooking, Raja went out and about fifteen minutes later he returned with the 2nd Applicant. Raja left the flat again and this time with a Filipino lady who was already in the flat when he came.

5. The 2nd Applicant said that he had been invited by Raja to dinner that evening. He was watching television in the bedroom when someone knocked at the door.

6. Their evidence went on like this. The 1st Applicant came out from the kitchen and opened the door. Immediately, four to five police officers entered the flat and one of them punched the 1st Applicant once on the chest. Both were told to face the wall and put their hands against it. One of the officers went inside the bedroom and came out with a packet containing white substance. Other officers later came out with more items. They were arrested and handcuffed and taken to Police Station.

7. In their home-made grounds of appeal, the 1st Applicant complained that his Counsel had not done his best to present his case and failed to bring out important evidence to the jury and this resulted in his conviction. The 2nd Applicant, on the other hand, criticised the trial judge of misdirecting the jury on the prosecution evidence; the judge was biased against him and his co-accused in the summing-up and lastly the trial judge failed to point out the inconsistencies and contradictory evidence given by witnesses. Before us, they repeated these grounds with some elaboration which do not add anything to further their case. The 1st Applicant said that the police were protecting other people because no mention was made about two passports found in the premises and this matter had been reported to the ICAC. The Applicants stressed that they were arrested inside and not outside the flat. This issue was clearly and specifically dealt with by the trial judge and resolutely rejected by the jury.

8. We have read the transcript of the trial with care and there is nothing that we can find to substantiate any of the allegations made by the Applicants. The judge had summed up the law and the evidence to the jury plainly, correctly, and in a fair manner which in no way suggests bias. Both Applicants were represented by experienced Counsel and we are satisfied, having examined the full transcript, that their conduct of the defence was adequate.

9. There is no merit in the appeal against conviction by both Applicants and leave is accordingly refused.

10. On the question of sentence, the sentence of 8 years' imprisonment is well within the guideline suggested by this Court in Attorney General v Ching Kwok Hung [1991] HKLR 125. We are satisfied that the sentence imposed on the Applicants is neither wrong in principle nor manifestly excessive. The applications for leave to appeal against sentence are also dismissed.

Representation:

Mr. Francis Lo for D.P.P.

1st Applicant: Abid Gul @ Abid Gull @ Abid Naveed Butt, in person.

2nd Applicant: Manzoor Anwar, in person