The Queen v. Cheung Wai Man and Another

CACC000285/1989

-----------------------------

Coram: Hon. Yang, C.J., Hon. Power, J.A. & Hon. Macdougall, J.A.

Date of Hearing: 23 February 1990

Date of Judgment: 23 February 1990

-----------------

JUDGMENT

-----------------

Hon. Yang, C.J. delivered the judgment of the court:

1. The applicant was found guilty after trial on two counts of possession of a dangerous drug for the purpose of unlawful trafficking, one count of possession of Part I poison and one count of being the person in charge of premises, namely room 661 Kai Yue House, Kai Yip Estate, suffering them to be used for the unlawful manufacture of a dangerous drug.

2. The applicant chose not to give evidence in the Court below.

3. Evidence adduced by the Crown was that on the 8th November 1988, the police saw the applicant and his co-accused, Lau Wai Leung, coming out of Kai Yue House. The applicant was carrying two travelling bags and Lau was carrying one. They put the bags into the boot of a car bearing registration no.  EA 2637 and drove off. The car was soon stopped by the police who found the applicant in the front passenger seat and Lau in the driver's seat. The applicant had on his person keys which were later found to fit the iron grille and wooden door of room 661 of Kai Yue House.

4. The three bags were found in the boot of the car and these contained dangerous drugs and also Part I poison. According to the Government Chemist's certificate, the dangerous drugs consisted of 11962.79 grammes of a mixture containing 2677.14 grammes of salts of esters of morphine, and the Part I poison consisted of various quantities of guinine hydrochloride, ephedrine hydrochloride and guinine ethyl carbonate.

5. On the day previous to this incident, the 7th November, a women police constable on surveillance duty saw the applicant open the iron grille and wooden door of Room 661 of Kai Yue House and enter.

6. D1's girlfriend gave evidence that she lived in Room 637 of the same block of Kai Yue House as that in which the applicant was living in Room 661. She said that he had moved to Room 637 to live with her shortly after her husband's death. The applicant's connection with Room 661 was therefore established by the keys found on his person, and that with Room 637 was established by his girlfriend's evidence as well as his fingerprint found on a plug.

7. There was also evidence of the discovery in rooms 637 and 661 of equipment normally used in the manufacture of No. 3 heroin. In Room 661 there were heroin splashes on the walls adjacent to a gas stove and there were traces of heroin in a microwave oven and on an exhaust fan.

8. The defence that was put forward in the Court below was that the applicant knew nothing about the presence of drugs anywhere, particularly in Room 661.

9. The trial judge dealt with the evidence in great detail in his summing-up which ran to 74 pages. There is no complaint on the part of the applicant this morning that the judge erred in any way in his summing-up. In his written grounds of appeal he put forward five arguments, first, that he had been unable to pay alimony to his ex-wife for a number of years and, secondly, that the girlfriend with whom he was living had been dependent upon public assistance for a similar period of time. These grounds were advanced to suggest that he was financially unable to undertake any drug trafficking activity. The third written ground of appeal was that as he was mentally unwell he could not have had the opportunity of selling drugs. Fourthly, that it was not him but one Wong Yun-ming and the applicant's co-accused who were the ones who were trafficking in dangerous drugs. And lastly that he knew nothing about the trafficking.

10. However, this morning he did not make any submissions on any of those five written grounds, but instead addressed us on various other matters. We need not refer to any of them save one. This was that on the day of trial his mental condition was so poor that his counsel on his instruction asked the judge to adjourn the case. However, the application was refused. We have looked at the record of the proceedings but we can find no reference to an application for an adjournment as alleged by the applicant. Mr. Stephen Wong for the Crown confirms that there was none.

11. The applicant also sought to make a submission that was nothing more than a narrative of what he would have said if he had chosen to give evidence. There was nothing which he said that we think would be proper for us to consider at this stage.

12. In our view, there are no merits in this application. It is therefore refused.

Representation:

Mr. Stephen Wong for the Crown/Respondent

Mr. Cheung Wai-man Applicant in person