R. v. Shek Chi Kin

CACC000544/1994

IN THE COURT OF APPEAL

1994, No. 544
(Criminal)

____________

____________

Coram: Hon Power, Ag. C.J., Litton, V-P. & Bokhary, J.A. in Court

Date of hearing: 3 May 1995

Date of judgment: 3 May 1995

__________________

J U D G M E N T

__________________

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

1. This is an application for leave to appeal against conviction by Mr Shek Chi Kin who was convicted after trial before Deputy Judge Yeung and a jury in October 1994 on one count of trafficking in dangerous drugs. He was sentenced to 11½ years' imprisonment. He was the 2nd defendant at his trial. He was charged together with one Chim Shing-chung, the 1st defendant, in having trafficked in heroin on 25 November 1993 in Mongkok. The quantity was 718.93 grammes of a mixture containing 284.45 grammes of salts of esters of morphine.

2. Chim had pleaded guilty to the charge and testified against the applicant at his trial. The prosecution case was that the applicant supplied the drugs. Chim had a string of previous convictions, some drugs-related, some not. He was, for instance, convicted in 1985 of robbery and had been sentenced to five years' imprisonment. Chim's evidence was to the effect that whilst at the Lai Chi Kok Remand Centre on 1991 he met a person called Hak Chai and in October 1993 he met up with Hak Chai again; through Hak Chai he met this applicant. They discussed an arrangement whereby the applicant would supply heroin for Chim to sell. So it came about that on the evening before the day charged in the indictment they arranged that the applicant should deliver to Chim the heroin the next morning at the off-course betting centre at the junction of Ferry Street and Dundas Street.

3. On the day in question, 25 November 1993, Chim met the applicant at about 7 am. The applicant arrived by taxi at the rendezvous and handed to Chim a carrier bag, saying that it contained "one unit", meaning a quantity of heroin. Chim took the bag home and found two blocks of No. 4 heroin wrapped inside black plastic bags. The plastic bags were wrapped in sticky tapes. Later that day Chim was arrested. The black plastic bags and sticky tapes were seized.

4. It was not until 18 May 1994 that the applicant was arrested. He was fingerprinted. Fingerprint impressions were also taken from the sticky tapes. Two prints lifted from the sticky tapes matched the applicant's fingers.

5. The applicant chose not to give evidence at his trial. That was of course his right but it meant that there was no evidence from him to contradict which Chim had said in court. There was no explanation offered as to how the applicant's fingerprints came to be on the tapes.

6. The judge warned the jury concerning the danger of accepting the evidence of a tainted witness like Chim: how he, Chim, might have lied to incriminate this applicant in the hope of obtaining a more lenient sentence. The applicant in his written grounds complained of unfairness at the trial. In our judgment the judge summed-up the case carefully and fairly to the jury. The jury convicted on the evidence they heard. There are no grounds for interfering with the conviction. The application is dismissed.

Representation:

Mr I.C. McWalters (Crown Prosecutor) for Respondent/Crown

Applicant (SHEK Chin-kin) in person