HKSAR v. Yuen Kim Wing

CACC503/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 503 OF 2005

(ON APPEAL FROM DCCC NO. 644 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore V-P & Stock JA in Court

Date of Hearing: 18 August 2006

Date of Judgment: 18 August 2006

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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 16 November 2005, the Applicant was convicted in the District Court of one charge of trafficking in dangerous drugs (after trial) and another of possession of dangerous drugs (on his plea).  The same day, HH Judge Yuen sentenced him to 4 years' imprisonment for the trafficking charge and 18 months' imprisonment for the possession one (of which 9 months were to be served consecutively to the other term).  The trafficking charge involved 13.97 grammes of a mixture containing 6.64 grammes of heroin hydrochloride.  The possession charge was in relation to 22.62 grammes of a mixture containing 12.64 grammes of heroin hydrochloride.  The Applicant applies for the renewal of leave to appeal against conviction (in respect of the trafficking charge) and against sentence (for both charges).

2.The principal prosecution witnesses at trial were police officers who had witnessed the relevant events of the day in question (11 May 2005).  That day, two police constables (PC1853 – PW1 and PC50898 – PW2, who incidentally had been observing the Applicant for a few days prior to the day in question) saw the Applicant coming out of a building in Causeway Bay.  They followed him to Times Square to the McDonald's Restaurant in the 2nd basement level.

3.There, PC1853 saw the Applicant meet a woman (later identified as a person surnamed Yuen) at the entrance and together, they entered the restaurant and stood at a table near the cashier counters.  PC1853 sat a table near them to observe.  He saw Yuen passed some banknotes (being $1,000 and $500 notes) to the Applicant who counted them.  After he did this, he put the notes into his left trousers pocket and then handed her two small packets.  Yuen then put the packets into a bag and left.  The Applicant left after her.

4.The Applicant and Yuen were then followed and apprehended.  The Applicant was stopped by PC1853 at the junction of Canal Road East and Russell Street and when searched, $5,000 (containing two $1,000 notes and six $500 notes) were found in his left trousers pocket.  There was also a bunch of five keys on him.  Yuen was stopped by another police officer (WPC56928 – PW3) at a bus stop on Canal Street West.  Two packets were found in a bag in her possession later found to contain 13.97 grammes of a mixture with 6.64 grammes of heroin (this related to the trafficking charge).

5.One of the keys found on the Applicant was used to gain entry into a flat at the same building where he had earlier been observed leaving.  There, in the presence of the Applicant and his wife, PC50898 found the following : -

(1)  Four packets later found to contain in total 22.62 grammes of a mixture with 12.64 grammes of heroin (this was the subject matter of the possession charge).

(2)  Two scales.

(3)  Some resealable bags.

(4)  A packet of straws.

(5)  A tenancy agreement which showed the Applicant to be the tenant of the premises.

The Applicant was then arrested.

6.On 17 May 2005, an identification parade was held at Wanchai Police Station in which Yuen was asked to view a parade which included the Applicant.  His barrister and solicitor were also present to observe proceedings.  After viewing the parade, Yuen was unable to identify anyone.  She is recorded to have said only “No”.

7.In giving her Reasons for Verdict (after a two-day trial), the Judge carefully examined the evidence both on the general issue and on the cautioned statements.  The Applicant gave evidence on the voluntariness of the cautioned statements but the Judge was satisfied beyond a reasonable doubt that they were made voluntarily.

8.However, it is right to say that it was the evidence from the witnesses on the general issue that the Judge placed greater reliance.  She took into account the various challenges made to the credibility of the police officers who had witnessed the Applicant's alleged activities on the day.  For example, it was suggested that if PC1853 was sitting as close to the Applicant and Yuen at the restaurant as he had said, he must have been able to hear what they were saying and not merely observe, yet it had been the police officer's evidence that he did not pay any attention to the conversation.  The Judge also specifically mentioned and took into account the absence of the Applicant's fingerprints on the packets of drugs and the absence of Yuen's fingerprints on the banknotes.  There were also discrepancies between the times of various events given by the witnesses but the Judge saw nothing sinister in the fact that the police officers had not synchronized their watches.  Taking everything into account, the Judge found the prosecution witnesses to be “truthful, honest and reliable”.  She was satisfied of the facts we have recounted above.

9.In the Notice of Application and in a letter to the court dated 3 August 2006, the Applicant has stated a number of matters he wishes to raise as grounds of appeal.  Essentially, they can be distilled into the following points : -

(1)  The cautioned statements were not made voluntarily.

(2)  The identification evidence given by the police officers was open to doubt and should not have been accepted by the Judge.

(3)  The Judge failed to take into account two important pieces of evidence : - first, the absence of fingerprints on the packets of drugs and the banknotes; secondly, the fact that at the identification parade (see paragraph 6 above), Yuen also said that none of the persons at the parade was the person who sold her the drugs.

10.In our judgment, there is nothing in these points : -

(1)  The Judge listened to the evidence on the special issue and was entitled to arrive at the conclusion that the statements were made voluntarily.  That said, as we have indicated above, the Judge did not really rely too much on the statements in arriving at her verdict.

(2)  As far as the identification evidence was concerned, the Judge again carefully analyzed the testimony given by the prosecution witnesses (the Applicant did not give evidence on the general issue) to arrive at her conclusions.  The matters that the Applicant now raises were taken into account by the Judge.

(3)  The absence of fingerprints was taken into account by the Judge (see paragraph 8 above).  As for the events of the identification parade held on 17 May 2005, all matters of note in relation to this were recorded in a statement of the senior inspector in charge of the identification parade and also in the relevant extract from the identification parade book.  The Judge was fully aware of the events of the identification parade since the statement of the senior inspector was admitted into evidence under section 65B of the Criminal Procedure Ordinance, Cap.221.  In fact, in the document headed “Admitted Statements under section 65B of the Criminal Procedure Ordinance, Cap.221”, it was recited that the statement was in relation to an identification parade held on 17 May 2005 where Yuen “failed to identify any person”.  As for the allegation that Yuen said that no one at the parade was the person who sold her the drugs, this was not recorded in the documents we have referred to.  More important, it does not progress the matter much further than the facts that were already before the Judge.

11.For the above reasons, the application for renewal of the application for leave to appeal against conviction is dismissed.

12.We now deal with the application for leave against sentence.  As far as the sentence for the trafficking offence is concerned, the term of 4 years' imprisonment after trial is in line with the Lau Tak Ming principles.

13.We are also satisfied that the term of 27 months (reduced to 18 months on account of the Applicant's plea) for the possession charge was appropriate.  The period of 27 months was arrived at by taking a starting point of 15 months and then adding 12 months on account of the factor of the latent risk to society of the drugs in question being redistributed and finding their way into the hands of other persons.  There can be no argument in relation to the period of 15 months.  As regards the additional 12 months for the latent risk factor, this was in line with cases such as HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 where an enhancement of 6 months was given for what the Vice President referred to as a “slight latent risk”.  In the present case, the risk can be classified as high, given the facts of the case and in particular the items that were found in the Applicant's flat (see paragraph 5 above).

14.The renewal application for sentence is likewise dismissed.

Mr Gavin Shiu of the Department of Justice for the Respondent

The Applicant, in person