R. v. Chung Chu Kam and Another

CACC000263/1995

IN THE COURT OF APPEAL

1995, No.263
(Criminal)

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Coram: Hon Yang, C.J., Ryan and Jerome Chan, JJ. in Court

Date of hearing: 11 January 1996

Date of delivery of judgment: 11 January 1996

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J U D G M E N T

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Jerome Chan, J.: (Giving the judgment of the Court)

1. This was an application for leave to appeal against conviction and sentence originally. It has now become an application to appeal against conviction only, the 2nd applicant having abandoned his application for leave to appeal against sentence. The applicants were convicted of unlawful trafficking in dangerous drugs.

2. The 1st applicant in his written grounds submitted that the conviction was unsafe and unsatisfactory. It is submitted that the evidence of PW1 and PW2 contains inconsistencies. He also appeared to have a complaint that a cautioned statement was not made voluntarily by him. His last complaint has no relevance to this appeal as no cautioned statement was ever produced at the trial.

3. The 2nd applicant submits that there are doubts and the evidence is insufficient to convict him. In his oral submission this afternoon, he also complains that the learned trial judge relied on a presumption to convict him. His last complaint can easily be dealt with if one looks at the Reasons for Verdict. In his Reasons, the learned trial judge expressly stated that he was not relying on any presumption and he referred to the evidence to support his findings that this was a case of trafficking. We shall deal with this point later.

4. On 2nd March 1994, a police party raided a room on the rooftop of No.57 Shanghai Street, Kowloon. After entry was gained, the applicants were found inside this room. The 1st applicant was sitting on a bed whilst the 2nd applicant was squatting on the floor. It was the prosecution's case that the 1st applicant was holding a laisee packet in his left hand which he threw onto a small table beside the bed upon seeing the police party. The 2nd applicant was handling some white powder with a MTR ticket in his right hand. On seeing the police party, the 2nd applicant also threw the MTR ticket amongst two heaps of white powder in front of him on the floor.

5. The 1st applicant was handled and arrested by PW2 and the 2nd applicant was handled and arrested by PW1.

6. It was admitted that the applicants were found inside the room. It was also not disputed that the laisee packet was found to contain dangerous drugs. It was also admitted that the two heaps of white powder in front of the 2nd applicant were found to contain dangerous drugs. Inside the room were also found articles that could be used for packing dangerous drugs into small plastic packages. It was also admitted by the 2nd applicant that he possessed the dangerous drugs but that it was alleged by him that it was for his own consumption.

7. We note in passing that the learned trial judge appeared to have made an error when he referred to the respective positions of the 1st and 2nd applicants. But that is an error of no consequence as it is not disputed who was sitting where.

8. The learned trial judge also referred to the evidence in relation to the exhibits found in the room. He was alerted to the discrepancies as to which item was where. He considered the discrepancies relating to the exact position of the various exhibits, he found them to be of no significant consequence. The learned trial judge had carefully considered the evidence and the submissions made on behalf of the solicitors for the applicants in respect of the discrepancies between the evidence of PW1 and PW2. However, he did not consider that there were any important differences between the evidence given by each of those two witnesses. He found any possible discrepancies in their evidence did not detract from the main issues.

9. None of the applicants gave evidence though it was suggested to the prosecution witnesses in cross-examination that the 1st applicant was sleeping at the time and did not hold the laisee in his hand as alleged.

10. We are unable to find anything in the learned trial judge's consideration and conclusion on the prosecution's evidence that gives rise to any concern. He had alerted himself to the discrepancies between the evidence of the police officers and found them to be insignificant and did not give rise to any reasonable doubt.

11. We have duly considered his reasons and the evidence of the police officers and are unable to find fault with his said conclusion. In view of the paraphernalia found in the room, in particular the multitude of small green bags, 162 in all, and 79 empty cigarette boxes, and in the absence of any explanation offered for the presence of such articles, the learned trial judge is amply entitled to draw the inference of trafficking as he did.

12. Notwithstanding the contention by the 2nd applicant that he possessed the dangerous drugs for his own consumption, there is nothing before us to give us concern that the convictions might in any way be unsafe or unsatisfactory. In the premises, both applicants' applications for leave to appeal the convictions are dismissed.

Representation:

Mr K.P. Zervos, S.C.C., for Crown/Respondent

1st Applicant Chung Chu Kam, in person

2nd Applicant Chan Wai Kit, in person