The Queen v. Leung Kam Yuk

CACC000424/1988

BETWEEN

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Coram: Hon. Silke, V. P., Power  & Penlington, JJ.A.

Date of Hearing: 13 January 1989

Date Judgment: 13 January 1989

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J U D G M E N T

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Power, J.A.:

1. The applicant faced a charge that she on 1st December 1987 at the ground floor, Hei Wah House, Lok Wah Estate, Kowloon, has in her possession dangerous drugs, namely 29.85 grammes of a mixture containing 1.93 grammes of salts of ester of a morphine, and 243 capsules containing 22.6 grammes of quinalbarbitone sodium (a salt of quinalbarbitone ) for the the purpose of unlawful trafficking thereth. She pleaded not guilty to that charge and was tried by Deputy Judge Hawker and after trial found guilty. She was then sentenced to two years; inprisonment and she now appeals aginst both conviction and sentence.

2. The facts are brief' in the extreme. The applicant was found lying unconscious by the caretaker of the premises. He called the police. One of the police officers checked the defendant's pockets with a view to establishing her identity and the drugs were then discovered. She was taken to United Christian Hospital for treatment and was later then taken to the Tai Lam Detention Centre.

3. The trial judge accepted the evidence of the caretaker and the police officers and was satisfied that she was guilty as charged. She now seeks to appeal against that conviction upon the grounds firstly that the caretaker had testified that he was at the scene throughout the whole incident and that he did not see any drugs "being searched" and, I add the words, "found by the police officers". This ground can be fairly quickly disposed of a it is not a correct statement of the evidence of the caretaker. What he in fact said under cross-examination is contained in the following passage:

"Q. what did the police do when they arrived?

A. I let the police take care of everything at the scene while I walked out to wait for the ambulance.

Q. Did you witness the police search this woman?

A. No."

It is clear from that passage in the evidence that the witness was not present when the police officers conducted their search and explains why he did not give any evidence in that regard.

4. The second ground is another matter of fact. It is the suggestion of the applicant before us, as it was before the trial court, that she was wearing a skirt at the time when the police officers searched her and that their evidence that she was wearing trousers is wrong and that they could not, therefore have found the drugs as they said they did. She in her Grounds of Appeal says "the record of my property kept the police station could be used to testify thas point". The caretaker both police officers and a nurse all gave evidence that she was wearing trousers at the time when they saw her. The caretaker was, the first one to see her, the two police officers then saw her when they came upon the scene; and finally the nurse saw the custodial ward of the Elizabeth Hospital.

5. It was the applicant's evidence that she could remember clearly what clothes she was wearing a grey skirt and not trouser.

6. The evidence of the nurse was referred to by the trial judge in his Reasons for Verdict. He said:

"The prosecution then called P.W.4, CHU Kit-miu, who is a nurse at the United Christian Hospital. She was on duty at a the time the accused was admitted to then orw hospital. The accused's was unconscious the time of admission. She told student nurse to take off he accused. Then she, together  with a woman police constable checked the clothed before placing them in a plastic bag before ore handing them over to the police.

She made a record of the patient's clothing and this included one pair of grey trousers. She agreed, however, that her memory as to exactly, what procedure, had been followed was not very clear at this stage."

The judge then went to detail the defendant's evidence in which she denied that she was wearing trousers at the time. Later in his Reasons he dealt with the matter in the following way:

"The defence produced r by agreement, a memo received, on behalf of the Commissioner of Correctional Services. This showed that on her reception at Tai Lam Centre (where she was taken after she had been discharged from the custodial ward of Queen Elizabeth Hospital), she was wearing a grey skirt. There was no mention of trousers, or for other matter, white socks or brassiere, two other items which are mentioned in the record made by P.W. 4 (who was the nurse Miss CHU Kit-miu)."

The trial judge was clearly, very well aware of the conflict between the defence and the prosecution evidence and was aware, as the next passage in his findings shows, that he had to resolve it He said:

"All the prosecution witnesses said that she was wearing or indicated that she was wearing trousers and I am satisfied that she was. I don't propose to speculate on how or when she was able to dispose of her trousers and exchange then for a skirt. I just do not believe that all four prosecution witnesses could have been mistaken about the trousers."

This was clearly a matter of fact, four witnesses on one side had sworn to the fact that she was wearing trouser, she had sworn to the fact that she was not. It was for the trial judge in the light of the evidence he heard and the assessment he made of the witnesses to mad determination in this regard, He made a clear determination and it is one with which this court could not possibly interfere. We are therefore satisfied that the application for leave to appeal against conviction must be refused.

7. The applicant in her appeal against the sentence of two years that was inposed upon her has in her grounds stated that she has recently given birth to a baby boy, that occurred while she was in prison custody, and that she also has to take care of her two young daughters and an aged mother. Upon these compassionate grounds she asked that her sentence be reduced. It is correct that three children, the baby boy recently born is now in a Social Welfare Home, her four year old daugther is presently who is presently in the son Po Leung and the older; daughter, who As nine lives with her mother and her younger brother and is presently in the Po Leung Kuk and the older daughter, who is nine, lives with her monther and her younger brother and is presently at school. The reports which we have had the advantage of reading indicate that this is a very sad case indeed. She and an unhappy childhood. She was a victim of a broken marriage. One of her children died shortly after birth and she then entered into another unsuccessful relationship which also ended unhappily. She has a long criminal record for offences which include the offence of robbery but which appear, we note, mostly concerned with dangerous drugs. The trial judge when sentencing her clearly took into account all that had been said in the Probation Report, the Drug Addiction Treatment Centre Report and the Psychiatric Reports. He observed, quite correctly, that the reports were rather unfavourable. The Drug Addiction Treatment Centre Report in fact described her as being incorrigible. He, however, was impressed, as this court has been, by the unhappy life which she has led and by the fact that many outside influences appear to have borne down upon her. Taking into account all of the matters before him he stated that he would deal with her as leniently as possible given the seriousness of the offence, trafficking in dangerous drugs, of which she had been convicted. He sentenced her, as I have said, to imprisonment for two years.

8. Taking into account all of the facts, we have come to the conclusion that the proper sentence was the one he imposed and are satisfied that we should do nothing to interfere with it. The Social Welfare Report that we have seen has indicated that the Social Welfare Department is aware of the needs of the family and will continue to render what assistance they can to them. We, insofar as it might be necessary, direct that social welfare assistance wherever possible be given.

9. The application for leave to appeal against sentence is also dismissed.

Representation:

Mr. D.S. Kilgour (Crown Prosecutor) for the Respondent. .

Applicant in person