The Queen v. So Chi Keung and Others

CACC000109/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Kempster & Clough, JJ.A.

Date of hearing: 29 December 1988

Date of judgment: 29 December 1988

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J U D G M E N T

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Kempster, J.A. :

1. On 1 March 1988 So Chi Keung, Leung Chiu and Hoi Wai Sang were convicted by H H Judge Moylan in the District Court on a charge of conspiracy to traffic in dangerous drugs contrary to Common Law between 2 and 14 August 1987. Against those convictions they sought leave to appeal.

2. Today after argument by counsel on his behalf had fallen on - shall we say - unfertile ground application was made to withdraw So's application and, in due course, Hoi expressed a like wish as regards his application. In the event we allowed the withdrawal of both which therefore stand abandoned and dismissed.

3. We are left with the application of Leung Chiu who, in his written grounds, complained of the commentary on the video tape in which, he asserted when addressing us this morning, he did not feature albeit the police officer giving the commentary said he did . He also emphasised the fact that his finger prints were not found on the banknotes seized on his arrest. It can hardly be overlooked, however, that he had made a written admission that such notes bore traces of fluorescent nowder of the type which had been placed on "trap-notes" used by undercover police officers. Finally he complained of the accepted practice whereby police officers were allowed to refresh memory by reference to their report books.

4. The trial judge prenared for us separate Reasons for Verdict in relation to each applicant; that relating to Leung being dated 18 March. He explained how the evidence of police surveillance of an area between blocks 17 and 19 of Tung Tau Estate, Wong Tai Sin, Kowloon, demonstrated a common pattern of behaviour by those accused of conspiracy. These observations were reinforced by the video recordings shown to the judge with the consent of the legal representatives of all accused. It had been edited down from 90 to 15 hours and the police officer giving the commentary was subject to cross examination.

5. Two police officers gave evidence of having successfully represented themselves as potential purchasers and of buying dangerous drugs from the accused, including this applicant, with banknotes dusted as already described and sometimes bearing numbers which they had recorded. The circumstances of trafficking recounted by the judge were so similar as to render the inference of system deriving from prior agreement and planning inescapable.

6. The remaining applicant elected not to give evidence though a defense was suggested on his behalf and that of the other accused at trial that they might have been involved in illegal activity other than trafficking in drugs.

7. There is, we find, no merit at all in Leung's application and it will be dismissed. Further, by reason of the lack of merits and pursuant to section 83W of the Criminal Procedure Ordinance (Cap 221) we direct that 3 months of the time during which Leung has been in custody pending this hearing shall not be reckoned part of his sentence.

Representation:

Mr Robert Buchanan (William Au & Co) for D1/1st Applicant

Leung Chiu, D3/2nd Applicant, in person

Hui Wai Sang, D4/3rd Applicant, in person

Mr E C Harris for Crown/Respondent