The Queen v. Tong Lee Ping

CACC000553/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 553 of 1988

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BETWEEN

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Coram: The Hon. Fuad, V.P., Hunter, J.A. & Mortimer, J.

Date of Hearing: 23 May 1989

Date of Delivery of Judgment: 23 May 1989

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J U D G M E N T

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Mortimer J. (giving the Judgment of the Court),

1. On 9th November 1988, the Applicant was convicted and sentenced 3 1/2 years imprisonment for Possession of Dangerous Drugs for Unlawful Trafficking contrary to Section 7 of the ordinance by Deputy Judge Toh in the District Court.

2. The facts were simple. On 22nd July 1988, officers searched the Applicant's cubicle at an address in Shamshuipo in pursuance of a general authorization. Beneath the bed in the cubicle occupied by the Applicant, an old Quaker oats tin was found. In that tin was a plastic bag containing 4 other smaller plastic bags, three separate plastic bags and a small metal tube. Each of chose articles was later found to contain a mixture containing salts of esters of morphine -44.25 grammes in total. The Applicant was asked what these were. He made no reply. He was arrested and cautioned, and he said "Sir, for my consumption only."

3. In the cublicle, keys for both the flat and the cubicle, and rent receipts were found.

4. At trial, the defence advanced by the Applicant was that there were two searches carried out of his cubicle, but nothing was found. That he was arrested, nor for possession of drugs, but for obstructing the police when they arrived to make, their search. He said that he was taken to the seafront and then questioned about his involvement in drugs affairs. He also said that in the circumstances he never said that the drugs were for his own consumption. The Applicant was represented by counsel. It is clear from the record that the police witnesses were carefully cross-examined on the lines of the defence which was advanced.

5. The learned judge heard careful submissions from the Applicant's counsel, and in the result, she accepted the evidence given by the prosecution that the drugs were found in the Applicant's cubicle. She disbelieved the Applicant's account and found the presumptions in relation to the drugs were not rebutted. Therefore the Applicant was convicted. He now seeks leave to appeal against that conviction.

6. The grounds he advances are these; first, the trial judge did hot have a good reason to find him guilty; secondly, the judge did not explain why she disbelieved the Applicant's evidence; and thirdly, that the various witnesses were contradictory to each other. Those grounds he advanced in writing.

7. At today's hearing, he advances a number of further grounds. Chiefly, they amount to complaints about his counsel. He says his counsel told him that five officers were involved; that two officers conducted the search of the room; and that having heard the evidence, here was no supporting evidence. Further, the Applicant complains that his counsel said he would apply for further witnesses to be called and for a site inspection but failed to do so. Finally, the Applicant complains that money was found by the police, but was not produced in court.

8. It is clear from the record that counsel defended the Applicant with considerable vigour having regard to the limitations of the Applicant's defence. The learned judge considered in her reasons the evidence which she had heard. She considered various immaterial inconsistencies in the prosecution evidence, but she found chat the accounts given by the prosecution witnesses were consistent as to the finding of the drugs and as to the words used by she Applicant when he was arrested and cautioned.

9. Further, the learned judge considered the Defendant's evidence. Far from not explaining why she rejected the Defendant's evidence in her reasoning she said :

"The Defendant gave evidence and said the drugs were not found in his home; and in fact he was arrested for obstructing police. Yet he went along with the police back to the Police Station quietly and when he was charged for possession of dangerous drugs for unlawful trafficking Police Station he said he signed obediently. This is not in the character of the Defendant's demeanour in the box. He was argumentative, emotional and certainly knew his rights - about not opening the door until the police could prove that they were police officers and said he wanted the police to take 2 other persons back to the Police Station as his witnesses.

I do not find the Defendant's story credible. Also he said he did not know if the packets he saw at the Police Station had dangerous drugs because they had not yet been analysed by the Government Chemist yet in his emotional outburst he said the syringe he was shown had dangerous drugs left in the solution, and he has therefore not sown any seeds of doubt into the evidence of the Crown."

10. The learned judge went on to find that the presumptions under Sections 47 & 46 had been raised but not rebutted.

11. Therefore, the first three grounds on which the Applicant applies are simply unarguable on the record of proceedings that is to be found with the ease.

12. As to the matters he advances today, there is no indication whatsoever that he was not properly defended and that all proper matters were not put forward on his behalf by his counsel. As to the complaint about the money, there is no indication that any money was found in his cubicle.

13. In the result, this was a straightforward case in which the Defendant's limited defence was properly advanced. The Defendant's evidence was rejected and there are no grounds upon which this court could properly give this Applicant leave to appeal and the application is refused.

Representation:

Mr. A.A. Bruce (S.C.C.) for Respondent.

Applicant in person.