The Queen v. Sham Shing and Another

CACC000547/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Fuad, V.-P., Kempster & Penlington, JJ.A.

Date of Hearing: 1st June 1988

Date of Judgment: 1st June 1988

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J U D G M E N T

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

1. On 23rd October 1987 the Applicant, Sham Shing (D1) and Ng Shing Luen (D2), were convicted by His Honour Judge Sir Georges Souyave after a trial in the District Court on a joint charge (1st charge) of possessing dangerous drugs for the purpose of trafficking. They were respectively sentenced to 6 years' and 5 years' imprisonment. They were also separately charged with assaulting different police officers in the due execution of their duty. The Applicant received a concurrent sentence of 1 months' imprisonment and D2 a concurrent sentence of the same length. The Applicant now seeks leave to appeal to this Court against his convictions. D2 had made applications in relation to his convictions and sentences but abandoned them at the outset of the hearing.

2. The learned judge found the following facts. Police Officers from the Narcotics Bureau were on surveillance duty on 19th March 1987. Shortly before 5:00 p.m., a police constable saw the two defendants with another man and a woman leave a restaurant in the Homantin area and go to a parked car. D2 took some keys from his pocket, opened the driver's door of the car and got in. He let the Applicant into the front seat next to him and the other two into the back seats. No one was carrying, anything at that time, except the woman who had her handbag.

3. D2 drove the car to the exit gate of the car park and there the Applicant got out of the car together with the woman and the other man. He was then carrying a brown plastic bay with something in it. The Applicant boarded a taxi with the bag in his hands and sat in one of the rear seats. The other man and the woman drove off in another taxi.

4. The police officers were in radio contact with each other. Two other police constables were alerted and followed the taxi in which the Applicant was a passenger, in another car. They drove in front of the taxi and forced it to stop. The two police constables approached the taxi from different sides and one of them saw the Applicant with the brown plastic bag on the rear seat.   He revealed his identity to the taxi-driver. The Applicant got out of the' taxi with the plastic hag. He pushed the constable to the ground and dropped his bag. The constable received minor abrasions on the palms of his hands.

5. The Applicant ran down Sheung Foo Street and turned into Sheung Shing Street chased by the other police constable who had approached, the taxi. The first constable picked up the plastic bag and also gave chase. All this was seen by two police sergeants who had arrived in another police car. The second police constable caught the Applicant and subdued him after a struggle. The plastic bag was opened by the first constable in the Applicant's presence. It contained a polythene bag with about 1 1b. of what looked like drugs in it The Applicant was, arrested and cautioned for possessing dangerous drugs but, said nothing in answer to the caution.

6. We are not concerned now about the circumstances in which D2 was arrested.

7. The plastic bag which the Applicant had been seen carrying and had dropped when he was caught, was found to contain 448.22 grammes of a mixture, containing 33.54 grammes of esters of morphine.

8. The Applicant elected not to give evidence and called no witnesses.

9. After reviewing the evidence he had found proved, the judge explained why he had convicted each of the Defendants in great detail.

10. The judge prayed in aid the statutory presumptions when dealing with the case against the Applicant and found that they had not been rebutted

11. The Applicant is represented by Mr. Forrest before us. He had been represented by a solicitor at his trial. Mr. Forrest submits that the convictions were unsafe and unsatisfactory. He draws attention, to the evidence of the taxi driver who drove the Applicant. In examination-in chief he had said that the Applicant had got out of his taxi before the approaching police constables revealed their identities The effect of his answers in cross-examination, on the other hand, was that the Applicant and the police constables alighted from their respective vehicles at the same time. This was different from what the police officers had said.

12. Counsel submits that on the taxi-driver's account of the sequence of events the significance of the Applicant "leaving the taxi in a hurry" assumed far less significance. And if the taxi-driver's version were the true one the police constable who said he had seen the plastic by on the back seat of the taxi could not have done so. Moreover the assault and dropping the bag could not have happened in the way recounted by the police witnesses.

13. Counsel also contended that since one of the police constables who had intercepted the taxi had said that all he could remember clearly was that he had seen the Applicant with the bag, such a concession must cast doubt on his credibility. Counsel also drew attention to part of the testimony of one of the police officers who followed and caught up with the car D7 had been driving, where he admitted: ".... I had a lot to pay attention to and I was a bit confused." Little or no reliance, it was suggested, could be placed on a witness who admitted to such confusion.

14. I will not read what the judge said about the discrepancies in the testimony of One prosecution witnesses, but he dealt with the matter in considerable detail on pp.6 and 7 of his full and carefully formulated Reasons for Verdict. He referred to the more important differences between the evidence of the taxi-driver and the police officers. This Court has said time and time again that the District Court Ordinance does not require the judge to deal with every small defect in the prosecution evidence. What is necessary is that he should have demonstrated that he has properly evaluated the evidence and this we are satisfied he did.

15. The learned judge's treatment of the evidence cannot be faulted. There is nothing in any of the points raised on behalf of the Applicant. He was convicted on cogent and compelling evidence to which he offered no explanation.

16. For these reasons, the application is refused.

Representation:

Mr. Robert Forrest (Knight & Ho) for 1st Defendant/1st Applicant.

Ng Shing Luen, 2nd Defendant/2nd Applicant in person.

Mr. M. Wilson (Crown Prosecutor) for the Crown.