R. v. Lam Cheuk Kwan

CACC000550/1996

IN THE COURT OF APPEAL

1996, No. 550

(Criminal)

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Coram: Hon. Power, Ag. C.J., Nazareth, V.-P. & Mortimer, J.A

Date of hearing: 16 April 1997

Date of judgment: 16 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of trafficking in a dangerous drug. It was particularized that on 20th January 1996, outside 37 Ngan Fung Street, Fung Wong Sun Chuen, Tsz Wan Shan, Kowloon, he unlawfully trafficked in a dangerous drug, namely 210 grammes of a mixture containing 29.17 grammes of heroin hydrochloride. He pleaded not guilty before Judge Whaley in the District Court but was, after trial, found guilty and sentenced to imprisonment for six years. He now seeks leave to appeal against that conviction.

2. We take the facts from the Reasons for Verdict of Judge Whaley. They were as follows. PC 13088 said that in the early hours on the day in question, he and his partner were on dangerous drug operations as from about 0150 hours in the morning, in the area of Ngan Fung Street. They were in plain clothes and at about 2:30 in the morning they observed two persons walking towards them. He considered that they were acting suspiciously and they were stopped. The two persons were the defendant and a person Fan Chi-keung. They were separated and PW1 proceeded to question and then to search the defendant and found from his right rear waist 11 transparent resealable plastic bags containing suspected dangerous drugs. He told his partner, who was busy searching the other man, that he had found suspected dangerous drugs, whereupon the defendant said, "Ah Sir, give me a chance, I helped someone to carry it." Thereupon PW1 asked him who he was carrying it for and the defendant said "Ah Hung. Each time he gave me $3,000." Therefore PW1 said he declared arrest of the defendant and cautioned him, whereafter the defendant said, "Give me a chance. Recently, because I have no work, I committed it." His partner informed the inspector in charge of the team what had happened and about two minutes later the rest of the team arrived at the scene. PW1 said he immediately reported to the inspector what had happened, showed him the drugs which he had found on the defendant. They then left the scene and took the defendant to the Tsz Wan Shan Police Station arriving about 2:45 a.m. and 10 minutes later the witness commenced taking a record of interview which was completed at 0350 hours. This record of interview set out the admission that was made by the applicant at the time of his arrest and went on to set out questions that were asked of him. We shall not detail the whole of what was set down but refer only to the following passage:

"Question: Where do 'Ah Hung' ask you to deliver the white powder? And, to whom did you hand the white powder?

Answer: He asked me to go to the small park at Ngan Fung Street at 2:45. He would take it by himself.

Question: Well, did 'Ah Hung' pay you $3000?

Answer: Not yet. He said that he would pay me after making the delivery."

The cautioned statement was challenged on the basis that it was not voluntary but it was, after the judge had heard evidence, admitted.

3. The applicant gave evidence in which he said that that he was not carrying the dangerous drugs and in which he suggested that there had been a deliberate and malicious attempt by the police to implicate him in the offence and that he had been beaten into submission and forced to make the statement. The trial judge rejected his evidence and accepted that of the police officers. He said after reviewing the evidence:

"As I have stated, all the police officers gave their evidence well and straightforwardly, in my view, and I had no reason to believe that they were telling anything other than the truth. I was satisfied that the events occurred as the police officers testified, and particularly as to the circumstances in which the defendant was arrested and the admissions that he had made, both at the scene and later in his cautioned statement."

4. The applicant in his written grounds of appeal raises only two matters of any moment. Grounds 2, 4, 5 and 6 do not contain anything of merit. In Ground 1 he says that there is a discrepancy between the evidence of PW1 and that of PW2 and that PW2 failed to prove that PW1 "had found exhibits on me". It does appear that there were some discrepancies but the trial judge was well aware of them. He mentioned them in his statements of findings and clearly took them into account when assessing the evidence. There is no merit in this ground.

5. The only other written ground with which we need to deal is Ground 3 in which he says:

"I have witness(es) to prove that I had a job at that time, and the time when I got off duty could be proven as well. I was not unemployed. The evidence given was totally contrary to this point."

Again this a matter was raised at trial. It was a matter to which the judge gave his consideration but he was nonetheless satisfied to accept the evidence of the police officers and, whatever may be the case as to employment, it did not in any way lessen his preparedness to accept the police evidence and to proceed to a conclusion of guilt.

6. Today the applicant has raised matters with us in argument. They pertain mainly to the suggestion that his cautioned statement contains so many inherent doubts that the judge should not have been prepared to act upon it. Nothing he has said really bears this out. His cautioned statement was straightforward and it contains clear admissions which the judge was, in our view, entitled to act upon. In all of the circumstances, nothing has been raised which would in any way suggest that the conviction was either unsafe or unsatisfactory and the application must be refused.

Representation:

Mr. Francis Lo (Crown Prosecutor) for the Respondent.

Applicant in person.