The Queen v. Ho Sik Yin

CACC000313/1987

IN THE COURT OF APPEAL

BETWEEN

______________

Coram: Hon. Silke, V.-P., Parker, J.A. & Penlington, J.

Date of Hearing: 8th January 1988

Date of Judgment: 8th January 1988

________________

J U D G M E N T

________________

Silke, V-P:

1. The Applicant, Ho Sik Yin, appeared for trial before His Honour Judge Gall on two charges: (1) possession of dangerous drugs for the purpose of unlawful trafficking and (2) possession of apparatus fit and intended for inhaling of a dangerous drug. He was acquitted on the second charge but convicted on the first. He now seeks leave to appeal against that conviction.

2. The first charge related to a mixture of 62.9 grammes which contained 16.78 grammes of salts of esters of morphine. The second charge related to a match box cover and a piece of tissue both of which had traces of dangerous drugs.

3. The trial judge was not prepared, in the absence of other evidence, to accept that these two items, that is the match box cover and the tissue, were fit and intended for the inhaling of dangerous drugs, being not satisfied that the "chasing the dragon" method of drug taking was so notorious that the mere production of the match box and the tissue by themselves was enough to prove the charge and, rightly or wrongly, he acquitted the Applicant.

4. The general facts were that on 3rd November 1983 - and that date has significance - a police party consisting of an Inspector, a Sergeant and three Constables were keeping watch on the 13th floor of 739 Nathan Road. They saw the Applicant and a woman come out of Flat E. The two were apprehended and brought back into the flat. Inside, the Applicant indicated the middle cubicle in a row of three cubicles as being his. He produced the keys and the door was opened. The room was searched and on a low cabinet near the bed was founded an unwrapped box of Ginseng Tea. As well as tea, when that box was opened, it was found to contain 12 packets of dangerous drugs. There was also a "strepsil" box with an opened packet of dangerous drugs and the match box cover and the tissue.

5. Both the Applicant and the woman were taken to the police station. There the Applicant was charged with the two offences for which he was tried and the woman was released without charge.

6. There was no issue at trial that the Applicant was the tenant of the cubicle and that he occupied it nor was there any issue taken that the drugs and the paraphernalia to which I have referred were found as indicated by the prosecution evidence.

7. Both the presumptions, that is the presumption of possession and knowledge and the presumption of possession for trafficking by reason of the quantity, arose.

8. The defence case was that the girl was a night club hostess with whom the Applicant was friendly; that she had come to his room on 2nd November and stayed overnight and until the late evening of the 3rd. On her arrival on the 2nd, she had with her a plastic bag. There were three parcels inside it and this was put upon this low cabinet. One of those parcels was the Korean Ginseng Tea box. The Applicant denied having any knowledge of the contents of that box or for that matter of the other parcels which seem to disappear out of the picture. He said it was not he but the girl who gave-the keys of, the premises-to the police. He also says that he told the police specifically at the time that the drugs were not his but were those of the girl and that he did not know they were there.

9. Two of the police party gave evidence. One a constable and the other the inspector-in-charge. The constable was the person who searched, found the drugs and questioned the Applicant.

10. The judge noted they were, of course, giving evidence 3½ years after the event. The constable had before coming to Court and quite properly, refreshed his memory from a statement which he made on 27th November 1983. There was no evidence that the Inspector had any statement which he could use for that purpose. It was not surprising that his evidence was somewhat vague as to detail.

11. The point which has given rise to Mr Wong's, who appeared for the Applicant in this Court grounds, of appeal is that note books of the two officers had been destroyed two years after their completion. This was highly unfortunate but apparently It is routine that note books are destroyed after two years. We consider that some steps should be taken to see that note books which relate to cases pending for whatever reason, are not so destroyed.

12. The constable who had as I say refreshed his memory did remember at least one detail which he did not put into his statement but which was contained in the note book.

13. The judge accepted his evidence without reservation. It was Mr Wong's point that, while accepting that it might support that evidence, why also, finding the evidence of the Inspector to he true the judge went too far There was one error in the Reasons for Verdict for the judge said that both witnesses had refreshed their memories by statements.

14. In his clear and concise Reasons for Verdict the trial judge made it clear that it was mainly the evidence of the constable upon which he relied and while the evidence of the inspector was vague as to detail and there were matters which he could not recall, generally that evidence supported the evidence of the constable. This was a view which the trial judge was entitled to take.

15. There is next a complaint that a cautioned statement; said to exist and made by the Applicant, indicating his lack of knowledge of the drugs was not produced in evidence. Counsel at trial did not on the face of the record seek to have it produced for the defence. What form, that cautioned statement took we do not know, whether it was in the note hook or whether it was on a separate sheet of paper. There was no evidence that it had been destroyed.

16. It was suggested to us that it was incumbent upon the Crown to produce it. We do not agree. It was a self serving statement that would not have been open to the Crown to introduce generally into evidence. If it existed; it certainly would have been open for the defence to call for its production by the Crown and to make what use of it they could in relation to the defence raised.

17. There is also complaint that the girl who had been released without charge, was not produced by the Crown in evidence. Rut this again is not a matter upon which it was incumbent for the Crown to act.

18. The Applicant had said in his own evidence he had had attempted to trace this girl immediately after his release on bail - this in 1983 - and that he had failed to do so. He did not know her address. He did know the night club at which she worked. He looked for her there without success. There is no evidence of any further attempts to trace this girl.

19. We do not think those grounds to have substance.

20. This case stood or fell on the trial judge's assessment of the witnesses and of the evdience. Bearing in mind the unfortunate destruction of the note books, the trial judge was entitled to come to the decision he did.

21. We do not think this conviction to be either unsafe or unsatisfactory despite the valiant effort of Mr Wong who had said everthing that could be said on the Applicant's behalf. The application is, therefore. dismissed.

Representation:

M.K. Wong, Esq. (Philip S.W. Wong & Co.) for Applicant

Christopher Harris, Esq. for Crown/Respondent