HKSAR v. Chan Kim Fai

CACC309/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 2004

(ON APPEAL FROM HCCC NO. 300 OF 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore VP & McMahon J in Court

Date of Hearing : 2 November 2005

Date of Judgment : 2 November 2005

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 29 June 2004, the Applicant was convicted after trial in the Court of First Instance before Deputy High Court Judge Wright and a jury of a charge of trafficking in dangerous drugs.  On 30 June 2004, he was sentenced to 19 years’ imprisonment.  The charge was that on 17 July 2003, the Applicant, together with one Lo Kwong Ming and Wong Kwong Tat, unlawfully trafficked in 936 grammes of a crystalline solid containing 929.26 grammes of methamphetamine hydrochloride.  The Applicant applies today for leave to appeal against conviction, leave having earlier been refused by Stock JA.  He appears also to apply for an adjournment this morning and in so far as he makes this application, it is refused.  An earlier application for an adjournment was made by letter and this was refused in correspondence.  This appeal has been outstanding for quite some while.  As I have mentioned earlier, the conviction was recorded on 30 June 2004.  There have already been a number of adjournments and many opportunities for the Applicant to have secured legal representation by now.

2.At trial, the prosecution adduced evidence of a meeting that took place on 17 July 2003 between two undercover policemen (known as DPC52488 and DPC1569) posing as purchasers of drugs and Lo and Wong.  At this meeting (which took place in a café in Temple Street) involving the purchase of drugs by the policemen from Lo and Wong, Wong made a number of telephone calls which culminated in him saying to DPC1569 “The goods are okay.  Go”.  At this point, he and DPC1569 left the café and boarded a taxi to Shatin.  A number of telephone calls were made from Wong’s mobile telephone in the course of this journey.  After arriving at Sha Kok Estate in Shatin, the two men went by foot to Pok Hong Estate (the location named in the charge).  Again, telephone calls were made when the two men were walking.  At the estate, DPC1569 saw the Applicant, who was waving to attract their attention and having done so, led them to a cooked food stall.  There, DPC1569 saw two other men at a table sitting on stools.  Between them was an empty stool with a plastic bag on top.  The Applicant was heard to say “The stuff is okay” pointing to the bag.  Wong then said to DPC1569 “The goods are here.  You take it yourself.”  He did and felt the bag from the outside to make sure of the contents.  Afterwards, he telephoned DPC52488 (who was still at the café in Temple Street with Lo) and $30,000 was given to Lo.  Subsequently, Lo, Wong and the Applicant were arrested.  Upon his arrest at the cooked food stall, a Nokia brand telephone was found in the Applicant’s possession.  The mobile telephones of Wong and Lo were also seized.  The mobile records of these three mobile telephones showed that calls were made to each other on the relevant day at the relevant times by the persons in possession of these phones.  It was an admitted fact at trial that the plastic bag seized by the police at the cooked food stall contained the dangerous drugs specified in the charge.

3.The jury unanimously convicted the Applicant.  In our view, based on the above evidence adduced by the prosecution (if believed), the jury was entitled to convict.  The Applicant was clearly dealing with dangerous drugs and he knew that they were of this nature.  The words spoken by him and the other circumstances of the case (in particular the inference that could be drawn that it was he who was communicating with Wong at the relevant time) could clearly lead to these conclusions being made.

4.In the grounds of appeal in his application for leave, his written submissions and in his oral submissions this morning, the Applicant essentially makes the following points : -

(1)	DPC1569’s testimony was unreliable in many respects and he should not have been believed (at least not to the extent required to convict).
(2)	There was insufficient evidence to convict him whether or not DPC1569 was believed.  Here, the Applicant insisted, for example, there was no evidence to show he had any knowledge of the fact that the plastic bag contained dangerous drugs.
(3)	The summing up was unfair and there were also some procedural irregularities.

5.In our view, none of these submissions has any merit to them : -

(1)	It was entirely open to the jury to believe the testimony of DPC1569.  The jury was adequately appraised by the Judge in his summing up of the points that counsel for the Applicant (at the trial below) made in relation to his and other testimony.  The jury was also reminded of the burden and standard of proof.  The points in favour of the Applicant (who, incidentally, did not give evidence) were articulated by the Judge to the jury.  In his written submissions, the Applicant referred to another drugs raid in which DPC1569 had taken part about a week earlier than the raid in the present case and made the point that while it would appear that the police officer was somewhat nervous in the present raid, he was by contrast not so in the previous raid.  Quite apart from the fact that there is considerable doubt as to whether this evidence even featured in the trial at all, it is in any event irrelevant.
(2)	There was sufficient evidence to convict the Applicant.  The Applicant tried to say, for example, that there was some doubt as to whether he used the Nokia phone found in his possession but the fact was that there was evidence to show that he was actually in possession of it with no evidence to lead to any other inference.
(3)	The summing up was in our view a fair and unbiased one.  The prosecution’s evidence was treated critically and the points in favour of the Applicant were articulated to the jury.  The procedural irregularities asserted by the Applicant were not irregularities at all.  For example, the Applicant complains that when the Judge informed the jury it was entitled to convict if jury members believed certain facts, this was somehow equivalent to bias against him on the Judge’s part.  There is simply no basis for this complaint.  He also relies on a decision of this Court in which the statutory presumptions in section 47 of the Dangerous Drugs Ordinance, Cap.134 were declared unconstitutional (see HKSAR v Hung Chan Wa [2005] 3 HKLRD 291).  No question of any presumption arises in the present case and it was not even mentioned by the Judge.  Today, he has made further points criticizing the Judge’s summing up, for example, when the Judge directed jurors to have an open mind and to be receptive to each other’s opinions, and also when the Judge directed the jury as to what was acceptable and what was not as majority verdicts.  All these and other procedural points have no merit whatsoever.

6.For the above reasons, the application for leave to appeal against conviction is dismissed.

Ms Grace Chan of the Department of Justice for the Respondent

The Applicant acting in person