R. v. Ng Sheung Yung

CACC000311/1996

IN THE COURT OF APPEAL

1996, No 311

(Criminal)

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Coram: Litton VP, Bokhary JA & Sears J in Court

Date of hearing: 17, January 1997

Date of judgment: 17, January 1997

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J U D G M E N T

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Bokhary JA:

1. This case comes to us from a trial before HH Judge Christie in the District Court.

2. The applicant is a man in his early 30's. He faced one charge. It was of trafficking in dangerous drugs consisting of 136.14 gms of a mixture containing 49.66 gms of heroin hydrochloride.

3. On May 22 last year, he was convicted as charged and sentenced to seven years' imprisonment.

4. He now seeks leave to appeal against conviction and, out of time, sentence.

5. At the moment, we are dealing with conviction.

6. Shortly stated, the prosecution's case is as follows. On December 1, 1995, at the junction of Catchick Street and Kin Man Street in Kennedy Town, two police constables stopped the applicant and searched him. Concealed against his abdomen inside his lower garment, they found a black plastic bag. The prosecution witnesses described the applicant's lower garment variously as a pair of shorts, a pair of trousers and a pair of pants.

7. Turning to the plastic bag, it contained 340 packets. And inside those 340 packets were contained a total of 136.14 gms of a mixture containing 49.66 gms of heroin hydrochloride: in other words, the dangerous drugs the subject-matter of the charge here.

8. Both constables gave evidence in support of the case which we have just outlined.

9. The applicant gave evidence denying that he had been in possession of any drugs at all. He said that he had been "framed" in that the drugs had been brought to the scene by the two constables and another police officer.

10. Having seen and heard all the witnesses including the applicant, the judge was satisfied beyond reasonable doubt that the drugs had indeed been found on the applicant.

11. It was agreed that the drugs were worth $77,000. Having regard to such value and how the drugs were packaged, the judge was of the view that the only reasonable inference was that the drugs were in the applicant's possession for the purpose of unlawful trafficking.

12. Thus the judge convicted the applicant as charged.

13. The applicant's Notice of Appeal for Leave to Appeal Against Conviction contain two grounds of appeal. They read:-

"1. In passing the verdict, the trial judge said that he believed in the evidence of [the two constables]. However, the judge did not mention anything regarding the evidence of ... the sergeant. The evidence of this sergeant contradicted those of the [constables]. And the judge even emphasized that he only believed in the evidence of the [constables]. But he convicted me and such act was extremely biased and unfair.

2. The trial judge even convicted me depending solely on a plastic bag which was unrelated to me. That was totally unreasonable. A subjective verdict!"

14. In the course of his oral submission, the applicant expanded upon those grounds and added to them.

15. In fact, the judge did deal with the sergeant's evidence, saying this:-

" There were two discrepancies in the prosecution witnesses' evidence worth mentioning. One arises from the evidence of the third prosecution witness, the sergeant, whose evidence as to the description of the dangerous drugs exhibit was in conflict with that of [the two constables] and the exhibit produced. The sergeant's description was that the package was tightly wrapped in transparent paper. [The constables], however, described a black plastic bag which contained the 340 packets and they produced that bag as exhibit P.1 This discrepancy ceased to be material when the defendant himself gave evidence and identified P1 as the container of the dangerous drugs at the scene.

Counsel has invited me to interpret the sergeant's evidence as meaning that there were more than one package of dangerous drugs at the scene. I dismiss that possibility as fanciful and it is not consistent with the defendant's evidence either."

16. So much for the first ground.

17. As for the second ground, the fact of the matter is that the judge was satisfied beyond reasonable doubt, on the evidence which he was entitled to accept and which supported the conclusion, that the bag containing 340 packets of dangerous drugs worth a total of $77,000 was found on the applicant's possession. So the bag was not "unrelated" to the applicant.

18. So much for the second ground.

19. There is not the slightest foundation for saying that the judge was biased or had acted in any way unfairly.

20. It is true that in his Reasons for Verdict the judge referred to the lower garment worn by the applicant at the time of his arrest as his trousers without mentioning that that garment had also been described in the evidence as shorts and as pants. The applicant has made a point about that. Bur the matter is not one of substance. It was just as easy for the applicant to hide the bag against his abdomen under his lower garment whether that lower garment happened to be a pair of shorts, a pair of trousers or a pair of pants.

21. There is no basis for upsetting this conviction. Leave to appeal against it is refused.

22. The sole ground of appeal contained in the applicant's Notice of Application for Leave to Appeal Against Sentence Out of Time reads:

"In respect of the quantity of dangerous drugs as put down in the charge and the guidelines for cases of similar quantity, the sentence of this case is relatively severe."

23. Here, there were 49.66 gms of heroin hydrochloride. The guideline range for between 10 gms and 50 gms is five to eight years. For between 50 gms and 200 gms, it is eight to 12 years.

24. The judge thought that the applicant's offence in fact called for an eight-year sentence. He was right to think so. He imposed the maximum term which can be imposed in the District Court, namely seven years' imprisonment. He was right to do that also. There is absolutely no basis on which the sentence can be disturbed.

25. Consequently, there is absolutely no basis for extending time for seeking leave to appeal against sentence. In the result, leave to appeal against sentence out of time is refused.

Representation:

Applicant, Ng Sheung Yung, in person

Mr A E Schapel (of the Attorney General's Chambers) for the respondent