R. v. Lam Chor Kwan

CACC000472/1995

IN THE COURT OF APPEAL

1995, No.472
(Criminal)

-------------------------------

Coram: Hon. Yang, C.J., Power, V.-P. and Wong J.

Date of Hearing: 17 January 1996

Date of Judgment: 17 January 1996

----------------------

J U D G M E N T

----------------------

Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one count of trafficking in a dangerous drug. This count particularized that on 6th December, 1994, at the entrance to Waldorf Apartments, Nos.382-384, King's Road, North Point, he trafficked in 1,363.73 grammes of a mixture containing 334.80 grammes of heroin hydrochloride. He pleaded not guilty but was convicted after trial before Deputy Judge Yeung and a jury. He now appeals against that conviction.

2. The facts were not complicated. The applicant had alighted from a taxi and was then apprehended by two Customs officers. He was carrying a bag which was found to contain the dangerous drugs the subject of the charge. He was then taken to his premises on the 10th floor of the Waldorf Apartments where it seems he resided with his girl friend. They were searched. Nothing suspicious was found.

3. Later in a cautioned statement he admitted possessing the dangerous drugs with the intention of processing them himself.

4. When he came to give evidence at trial he said that he had found the bag in a taxi. He admitted dishonestly appropriating it but said that he had no knowledge of its contents.

5. In his grounds of appeal he firstly submitted that the trial judge had told the jury that he had pleaded guilty in his statement. This is factually incorrect. The trial judge did not use such terms. He did, and quite properly, state that in the statement the applicant had admitted the offence. This was correct. However, he warned the jury to take care when considering the statement and to reject it unless they were quite satisfied that it had come from the applicant and was true.

6. In his second ground he suggested that the trial judge wrongly directed witnesses not to answer questions. We have perused the record with care and nowhere did the judge give any such direction.

7. Grounds 3, 4 and 5 really concern matters which were for the jury's decision. They are matters of fact which were for a jury properly directed as it was to make their own determination about. We don't need to deal further with them.

8. In Ground 6 he makes complaint that the police refused to answer questions. Again we see no ground for that complaint in the record.

9. His complaint in Ground 7 is that the taxi driver was not called. He suggests that he would have been a key witness and would have been able to give cogent evidence in his favour. It is true that the taxi driver was not called. The customs officers when cross-examined about this said that they were, not unnaturally, concentrating upon apprehending the applicant. Whatever the taxi driver might or might not have been able to say, the fact of the matter is that the jury did not have the advantage of his evidence and were required to determine the matter upon the basis of the evidence which they had before them.

10. The final ground is a suppositious one in which it suggested that if he was really carrying drugs on that day the authorities would not have apprehended him when they did but would have let him lead them to others involved in the trafficking. There is nothing in this ground. Indeed we are satisfied that there is nothing in any of the matters which have been urged by the applicant. The conviction was, we are satisfied, neither unsafe nor unsatisfactory and the application is therefore refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Applicant in person.