The Queen v. Lam Chung Lung

CACC000299/1984

BETWEEN

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Coram: Sir Alan Huggins, V.-P. Li & Yang, JJ.A.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against convictions for trafficking in a dangerous drug and for possession of a dangerous drug for the purpose of unlawful trafficking.

2. The police laid an ambush. There were five officers - a sergeant and four constables. Their evidence in general was that they saw the Applicant driving a motor scooter. He turned from Ma Tau Wei Road in Kowloon into Chung Chau Street, there dismounted and parked the vehicle, and walked along the pavement, where he met a woman, who was the 2nd Defendant at the trial. Two of the officers saw the Applicant pass a packet to the woman and receive some bank-notes in exchange. The officers say that the woman then walked off down Ma Tau Wei Road, where she was followed and was eventually arrested, while the Applicant returned towards the motor-cycle and was then himself arrested. The police officers searched him and found on him a substantial sum of money and some keys. With those keys they endeavoured to open the pannier on the back of the motor-cycle. While they were trying to do that, the Applicant endeavoured to escape but was re-arrested. The pannier was then opened with one of the keys taken from the Applicant, and in the pannier was found the quantity of dangerous drugs in the second charge. After the woman was arrested she was found to be carrying a packet of dangerous drugs, which it is alleged was the packet taken from the Applicant.

3. The defense's story was that the Applicant was not driving the motor-cycle at all - that he came on that motor-cycle as a passenger, he having delivered his own motor-scooter to a garage in Kowloon City for repair, because he had suffered a puncture: the fact that he had been both driving his own and had been on the other motor-cycle explained his having a helmet. He said that he had obtained a lift on the motor-cycle on which were found the drugs, because a friend had offered him a lift to meet his wife, who was in the vicinity of the arrest.

4. The substance of the appeal is that the evidence was unsatisfactory and that the judge did not properly consider the difficulties in the case. The judge himself said that the evidence of the witnesses was unsatisfactory and that all five police officers had been shown by cross-examination to be thoroughly incompetent: "they made it clear that they did not know how to give evidence, they did not know how to interrogate a suspect and they did not know how to investigate a case". Nevertheless, bearing in mind what the judge described as "the numerous oddities, absurdities, anomalies contradictions and inconsistencies which emerged during the prosecution case", he was satisfied that the witnesses were telling the truth.

5. There was, however, one important matter which I have not yet mentioned and that was that, when the Applicant was arrested, the keys found on him did not include an ignition key for the motor-cycle on which the drugs were found. The suggestion made both at the trial and before us was, of course, that without an ignition key it is improbable (to say the least) that he was able to drive the vehicle at all. It is a matter for comment that the judge having mentioned all these oddities and inconsistencies said: ''I came to the conclusion that all the police officers were telling the truth about the central issues in the trial". It was not until later in his judgment that he said: "There remains only the matter of the ignition key", and then said: "How then did the defendant drive the scooter to the scene and how did he turn off the engine?" When one reads the judgment it is possible to conclude that he came to the decision as to the truthfulness of the witnesses without considering the fact that it was difficult to drive a motor-cycle without an ignition key and that he considered the matter of the ignition key only in respect of the presumption which would arise if he were in possession of the motor-cycle or, of course, had a key to the pannier. We have considered this matter very carefully and we are unable to believe that a judge of some experience could possibly have considered the credibility of these police officers without having first considered the matter of the ignition key. He thought that the matter of the ignition key was explicable and we have come to the conclusion that he was justified in his conclusion that the witnesses' evidence could properly be believed despite all the criticisms which could be levelled against it. The judge saw these witnesses - we have not seen them - and he was satisfied that they were telling the substantial truth. In those circumstances we think that it is impossible for us to say that these verdicts are unsafe or unsatisfactory.

6. We add only one comment about a matter which is said to be now a practice. There has been filed a document which is headed "Final Grounds of Appeal Against Conviction". One has to dig very deep to find the grounds of appeal. This document is not a very happy combination of grounds of appeal and a skeleton argument. This court welcomes skeleton argument but grounds of appeal (properly drafted) are not just something which are welcome: they are an essential, and it is important - before the practice grows any more established - that we should say firmly that grounds of appeal as such must be filed either as part of the Notice of Application or as a separate document. They must not be hidden away in what is tantamount to a skeleton argument.

7. For the reasons which we have given this application must be dismissed.

24th August 1984