The Queen v. Mak Sin Yuen

IN THE COURT OF APPEAL

1986 No. 530
(Criminal)

BETWEEN

THE QUEEN

and

MAK Sin-yuen

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Coram: Hon. Li, V.-P., Kempster, J.A. & Power, J.

Date of Hearing: 4th February 1987

Date of Judgment: 4th February 1987

_________________

J U D G M E N T

_________________

Li, V.-P.:

1. The applicant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking. It was alleged that on 28th June last year at Flat 3A, Harvest Building, Oak Street he was in possession of 184.29 grammes of mixture containing 17.32 grammes of salts of esters of morphine. He was sentenced to 5 years imprisonment.

2. He applied for leave to appeal against conviction as well as against sentence. Before us he abandons his application for leave to appeal against sentence. Accordingly that application is dismissed.

3. Only one ground in support of the application has been advanced and that is that there was a gap in the chain of evidence concerning the handling of the suspected dangerous drugs between the time that they were seized by DPC2600 and the time that they were conveyed by DPC174 to the Government Laboratory for examination.

4. The evidence of the prosecution was that at about 4:15 am on the relevant day a police party raided the premises in question. A party of three officers were sent to the rear of the building on the roof of the podium to keep observation. Another party of police went to the door of Flat 3A. The Inspector knocked on the door and announced that they were police officers. As the banging was going on a rear window of Flat 3A opened. Someone dropped a package onto and landed the top of the first floor. This package was retrieved by DPC2600 and brought up to the Flat 3A.

5. In the meanwhile the party of police at the entrance of Flat 3A broke open the door to gain entry. They found the applicant the only person inside the flat. They carried out a search in the flat. Certain other paraphernalia were found - scales and polythene bags including cash. While they were there DPC2600 brought the package that he retrieved from the first floor roof into the flat. When it was opened it contained 20 small bags of dangerous drugs which constituted the subject matter of the charge.

6. The agreed facts between the Crown and the accused in the court below was that the applicant was a tenant of that flat, that the drugs with police exhibit numbers were seized in the flat by DPC174 and brought to the Government Chemists who certified that it contained the quantity of drugs as alleged in the charge. There was also evidence that when DPC2600 brought in the package it was handed over and was seized by DPC174 and marked as Exhibit 13 containing the drugs in small bags marked as Exhibit 1 and Exhibit 2.

7. The defence evidence was a general denial saying that there was another tenant, a Mr. Chan, who disappeared one or two days before the raid and that all these drugs and the polythene bags that were found in the flat belonged to this Chan. In the event the applicant was convicted.

8. The only ground of appeal is that there is a gap in the chain of evidence relating to the drugs seized. In the evidence of DPC174 he seized the package brought by DPC2600 who testified taking the package from the first floor podium into the Flat 3A. It was opened in the presence of the accused and was found to contain the dangerous drugs which were marked Exhibit P1, P2. The bag containing them was marked Exhibit P3. That was the complete chain of evidence. Witness DPC174 also testified that he seized that package Exhibit P13 containing Exhibits P1 and P2 from DPC2600. It is true that in the agreed facts only the police exhibit numbers were put and that there was no evidence in the notes of proceedings to show that Exhibit P1 and Exhibit P2 related to particular police exhibit numbers. However, such exhibits with the police exhibit numbers marked were put before the trial judge. This point was never taken into court below nor was it taken before this court. The better practice is to relate these police exhibit numbers to exhibit numbers allocated in Court so as to make it abundantly clear that what was produced in evidence with police exhibit numbers were in fact the specific exhibits allocated court exhibit numbers. The trial judge, having a sight of the actual exhibits with the police exhibit numbers attached, would identify them before allotting Court exhibit numbers. Nonetheless I think in future it would be better to have such matching on record rather than having to deal with the actual exhibits. At one point we were about to adjourn the hearing so that the exhibits with both police and Court exhibit numbers attached could be brought before this court for identification. Counsel for the applicant waived the necessity. 1hat being the case there was in our opinion sufficient evidence to complete the chain of evidence. There is no substance in this point and accordingly the application for leave to appeal against conviction is dismissed.

Miss Selina Lau (Philips S.W. Wong & Co.) for appellant

Mr. Lugar-Mawson (Crown Prosecutor) for respondent