The Queen v. Lee Sin Wai

CACC000363/1989

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Cons, V.P. & Hon. Hunter, J.A.

Date of hearing: 13 March 1990

Date of delivery of judgment: 13 March 1990

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JUDGMENT

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Cons, V.P. delivered the judgment of the Court:

1. The Applicant in these proceedings, LEE Sin-wai, was convicted by Judge FUNG in June last year for possession of dangerous drugs for the purpose of unlawful trafficking.

2. After hearing evidence the judge found that the Applicant had been in possession of a white plastic bag containing 145 odd grammes of a mixture of drugs. He was seen to be carrying the bag on a path beside a village, some of which has since been razed to the ground. When confronted by a uniformed constable he turned tail and ran, entered a house and appeared subsequently on a neighbouring roof. From there he attempted to throw the bag into a stream which ran below, but, as was later discovered, the bag did not reach the stream, being caught instead in the branches of a tree. All this was seen by the constable who had originally confronted the Applicant and by a civilian who happened to be nearby.

3. After these had given evidence, the judge visited the scene, when it became apparent that the village had changed considerably by reason of the demolition of the old houses. The constable was recalled to give further evidence.

4. In his evidence the Defendant denied the allegation. His story was that there was another man there, a man from whom he had just purchased and paid for drugs, but had not yet taken delivery. He said that he ran merely because the other man ran, and had no white plastic bag at all.

5. There were other witnesses in the case and some admissions of facts, but the outcome turned simply on the evidence of the police constable and the civilian witness. There was some difference between their evidence, for example, as to whether the constable had asked certain questions of the civilian witness, and after the visit to the site the constable admitted he could not be certain as to exactly which rooftop he had seen the Applicant appear upon. The judge however was aware of these matters, and despite them he was still satisfied that the constable and the witness were truthful in their evidence.

6. No identification parade was held in this instance, the Applicant being identified only in court. But the circumstances leave no room, - and for the reasons given by the judge in his recorded verdict -,  for any mistake as to identity. Further the Applicant's words, when the bag was subsequently opened in his presence, were strongly inferential of guilt. And finally there were in the bag together with the drugs, items which the Applicant admitted to be his. We are satisfied that there was ample evidence upon which the judge could come to his conclusion.

7. This morning the Applicant has raised a further matter. He suggests that the judge may have been biased against him because the judge had been made aware in a previous bail application, that he had previous convictions. In this respect it is pertinent to point out that, although the Applicant has been represented by various counsel throughout the whole of this matter, this is the first time objection has been taken in any court. We do not think it is made out.

8. The application for leave is therefore refused.

Representation:

D.G. SAW, Crown Prosecutor for Respondent

LEE Sin-wai, Appellant in person