The Queen v. Lam Tung Hung

CACC000386/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Huggins, V.-P., Silke, J.A. & Barnes, J.

Date of Hearing: 26th September 1986

Date of Judgment: 26th September 1986

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Lam Tung Hung, was convicted after trial of the offence of possession of dangerous drugs for unlawful trafficking. He received a sentence of 4½ years. He now seeks leave to appeal against both conviction and sentence.

2. On the 5th May 1986, police officers on duty noticed a motor-cycle, ridden by the Applicant, proceeding in a somewhat unusual manner. They stopped it, the Applicant was searched and in his jacket pocket were found two envelopes. Each contained packets of dangerous drugs, one containing 11 packets and the other 9 packets. The total weight of the mixture was 171.82 grammes containing 10.77 grammes of salts of esters of morphine.

3. Possession itself was not denied. That is physical possession. The trial proceeded on the basis of the issue of knowledge which the Applicant denied.

4. The trial judge stated that "having heard the Applicant's explanation on oath, the Court considered it unconvincing and unbelievable". Having so stated, he went on to instance three matters which had bearing upon the issue of credibility which was, of course, the main issue here. It is the submission of Mr. Polson, who appears for the Applicant in this Court, that the trial judge disbelieved the Applicant for the wrong reasons. He further submits that, because the trial judge did not specifically make reference to demeanour in the passage to which I have just referred, it is open to this Court to reconsider the disbelief - this passage being a simple outright rejection of the Applicant's evidence.

5. The three matters to which the trial judge made reference were: first, the finding, as the Applicant had stated in evidence, of these two bags by the roadside, the opening of one by the Applicant and not the other and the reason given by him for his lack of curiosity as to the contents of the second package as being that he was in a hurry to get home and "I did not have time to look in the other bag."

6. The second matter was the sum of money found in his possession when he was arrested, $2,898.  In evidence, he had first stated that he had borrowed this money, subsequently, he stated he had borrowed $1,000 of the money. He was unable to give the full name or address of the person from whom he had borrowed it.

7. I interpolate here that criticism has been made of the recording of the evidence given by the Applicant in cross-examination in narrative form. We do not think that criticism to be a justifiable one. The method of recording has been approved and the transcript itself does not, in our view, lead to any anomaly.

8. The third matter was the evidence of the Applicant when he was asked a question about watching television "American Thrillers" and, having agreed he did, stating that he had no idea that drug trafficking was a lucrative trade. We accepted that this particular passage gave little guidance as to his credibility.

9. The issue was clearly in the mind of the trial judge; knowledge and the credibility of the Applicant. He was the seeing and the hearing judge and when he made reference to having heard the Applicant's explanation, he must be considered to have had in mind the manner in which that explanation was given and its contents.

10. We do not think the criticisms that have been levelled are justified. The trial judge was entitled to come to the conclusions he did and we would add that, in relation to the cash found in his possession, there was no suggestion, nor did the judge himself consider it, as money coming from drug dealing but treated it as having bearing on credibility. In those circumstances, the application in respect of conviction is refused.

Sentence

11. We are minded to accept the submission made that we should call for reports though we wish to make it clear, first, that this is not a criticism of the trial judge and second the fact that we have called for reports does not necessarily mean that there will be any alteration in the sentence. It is a matter which we wish to consider before we deal with the application in respect of sentence. Therefore, as to sentence, we will adjourn the matter to a date to be fixed and call for Social Welfare and Correctional Services reports.

Representation:

Ian Polson, Esq. (Howell & Co.) for Applicant.

John Reading, Esq. for Crown/Respondent.