The Queen v. Li Ming Fat

CACC000484/1989

BETWEEN

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Coram: Fuad, V.-P., Power & Macdougall JJ.A.

Date of hearing: 14 July 1989

Date of judgment: 14 July 1989

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J U D G M E F T

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

1. The applicant, Li Ming Fat, appeared before Judge Moylan in the District Court charged with taking a conveyance without authority contrary to section 14(1) of the Theft Ordinance (1st Charge) and with possessing dangerous drugs for the purpose of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance (2nd Charge). He was found not guilty of the 1st Charge and convicted on the 2nd Charge. He was sentenced to 4 years' imprisonment and now seeks leave to appeal against his conviction and sentence.

2. The prosecution case was that on the morning of 28 April 1988 four police officers were on patrol in a police vehicle driving along Lung Cheung Road in the fast lane. They saw a light goods van in front of them in the slow lane and noticed that there was a gap between the first and third digits of the registration number on the rear number plate. They overtook the van and observed that the front number plate read "DS5196" and that the figure "1" on the rear number plate had been obscured by yellow tape.

3. The driver of the van, who was the Applicant, (no one else was in the van) was ordered to stop and he did so at a bus stop. He was not able to produce an identity card or driving licence when asked for them. When asked whether the van belonged to him, the applicant said it did not and that be had borrowed it from a friend named Wan Kok Yau. When his attention was drawn to the figure on the rear number plate being masked by tape he said that that could not be so. He was told to get our of the driving seat and see for himself. After he had done so he ran away into Wong Kuk Avenue and then Ching Yeung Avenue. He was chased by three of the police officers, while the fourth kept watch on the van. The applicant fell to the ground at the junction of Ching Yeung Avenue and Hung Mui Avenue and was subdued and arrested.

4. The police officers found a paper package in the recess under the handbrake of the van and another such package on the floor near the foot pedal. Each package contained 5 transparent plastic bags with what looked like drugs in them. Upon later analysis the 10 plastic bags were found to consist of 78.01 grammes of a mixture containing 6.55 grammes of salts of esters of morphine.

5. The applicant gave evidence at his trial. He said he was a taxi driver. He told the Court that he had been taking drugs from about March 1987. He had known the owner of the van, Wan Kok Yau, for some 2 years. They had been friends. They were both drug addicts. On 28 April 1988 he had finished work between 6:00 and 6:30 a.m.. He had gone to Wan's house and taken drugs there. Wan fell asleep. Because he felt bored and hungry he took the ignition keys of Wan's van from a table in the flat so that he could drive it "for food and a joy ride". He had left his own bunch of keys on a sofa in the same room (where the police found it) intending to recover his keys after he had eaten something. The shorts he was wearing did not have many pockets and that is why he had left his keys in the flat.

6. The applicant then gave his account of what had happened at Lung Cheung Road. He said he was stopped by the police and told them he had forgotten to carry to his identification card and driving licence. He was told about the obscured digit on the rear number plate of the van about which he knew nothing. He then looked for himself and "then I became frightened. I did not have my identity card and driving licence with me and I knew that my friend Wan often used this vehicle for unlawful purposes. I became frightened so I ran away. I knew that Wan often used the vehicle to transport white powder and things like that ...". He also told the Court that he had not noticed the two packages in the van until the police had found and seized them.

7. In his Reasons for Verdict the judge reviewed the evidence and said that he could not accept the applicant's evidence about the reason for taking Wan's van. He was satisfied that the applicant knew that the two packages containing the drugs were in the van. He did not accept the applicant's statement that one of the packages was under one of the car mats. The judge applied the presumptions applicable under the Dangerous Drugs Ordinance and stated that nothing the applicant had said had satisfied him, even on the balance of probabilities, that he did not know, or might not have known, that the two packages of dangerous drugs were in the van or what was in them.

8. By his grounds of appeal the applicant protests his innocence because all the articles in the van belonged to his friend Wan. He had no idea that the drugs were in the van. He also said that there were significant discrepancies in the testimony of the witnesses of the prosecution and that the judge had not taken account of the fact that he really did not know that the white powder was inside the van. This was highly unfair to him.

9. Before us, he in effect repeated the defence he had raised before the judge.

10. The prosecution presented a formidable case against the applicant and the judge's Reasons for Verdict covered all the essential matters in the case. There were no misdirections and no non-directions. The conviction cannot be assailed and therefore we refuse the application for leave to appeal against the conviction.

11. As to sentence, in his grounds of appeal the applicant said that he had elderly parents who were dependent on their children. His brothers and his sisters had all moved away from home after their marriages and he was the only one left upon whom his parents could depend. He said that he had made friends with bad elements and had made a serious mistake. Before us he said that he had suffered a great deal as a result of the offence he was alleged to have committed. He said that his family were angry with him and that, in effect, he had now lost his family. He was contrite and begged for one more chance to reform himself.

12. The sentence of 4 years which was imposed upon him was well within the appropriate guidelines for this type of offence. It is to be noted that this was not the first time that the applicant has appeared before the Courts. He has two previous convictions for drug related offences, both committed during 1984. He was fined $500 in May for possessing dangerous drugs. He was sentenced to 3 years' and 3 months' imprisonment and 9 months' imprisonment to be served concurrently in November for possessing dangerous drugs for unlawful trafficking and for simple possession of dangerous drugs.

13. In these circumstances we are unable to say that the sentence was manifestly excessive. The application for leave to appeal against sentence is also dismissed.

Representation:

Li Ming Fat, the applicant, in person.

Mr. M.C. Blanchflower (Crown Prosecutor) for the Crown.