HKSAR v. Chan Chun Nam

CACC000576/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.576
(Criminal)

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Coram: Nazareth, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 13 February 1998

Date of Judgment: 13 February 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. This Applicant was convicted in the District Court on 5th September 1997, following a trial before Deputy Judge Line on charges of trafficking in a mixture containing 28.33 grammes of heroin hydrochloride. The Applicant had pleaded guilty from the outset to a further charge of minor criminal damage to a chair at the police station.

2. This was a case of the utmost simplicity. The applicant was noticed in To Kwa Wan Road on 18th March 1997 by two police constable to be acting in a suspicious way. He was followed into a building at No.70 in the same road and there he was stopped and searched. The drugs were found in his possession. The Applicant said nothing to the police after being cautioned and he, again, said nothing when a report was made to the duty officer at the police station.

3. When he was invited to sign a post-record of the events, he refused to do so and it was at about that time that he smashed the wooden chair against the ground in a sudden outburst. This incident caused the duty officer to come into the room. The officer, PW4, denied the suggestion that was put to him that the Applicant was complaining, though he agreed that the Applicant appeared to be infuriated.

4. The drugs were then put into a tamper-proof bag, and the Applicant refused to sign the label. PW2 recalled the Applicant saying that he was not signing because the drugs were not his and that PW4 was present at that time.

5. All of these matters are referred to in the Reasons for Verdict which were given in an extemporary judgment which is none the worse for that. It is clear also that the learned deputy judge took into account the small discrepancies that arose on the police version of events.

6. The strong prosecution case, as Mr. Bruce rightly describes it, had been left uncontradicted. The Applicant, wholly within his rights, had decided not to give evidence. As a result, there was no evidence to support the suggestion which had been put in cross-examination on his behalf that these drugs had never been found on the Applicant but had come instead from a handbag carried by a lady at the scene of the arrest who had now disappeared.

7. Mr. Grounds, on the Applicant's behalf, contends that the trial judge has erred by failing in the first place to apply the burden of proof correctly and, secondly, by a failure to evaluate the evidence satisfactorily. In the present context, the two points are so closely related that they can be dealt with conveniently together.

8. Mr. Grounds submits that where the judge has fallen into error is to be demonstrated from the Reasons for Verdict at page 3 line B, where the judge says this (dealing with the evidence of PW4):

"He denied the suggestion that the defendant was saying the drugs were not his, and what he described is equally consistent with a man upset at being caught when he has done it."

9. Mr. Grounds' submission comes to this, that the Applicant's outburst was equally consistent with two states of mind, one being his infuriation at being caught, and the other his infuriation at being framed by police. However, this was a matter that had been considered by the judge. He took into account at page 2 line G in his Reasons, that PW2

"recalled the defendant saying that he was not signing because the drugs were not his."

10. The judge went on to say at page 3 line E:

"If it had been the case that the defendant was saying, 'I have been planted with these drugs. These police officers know perfectly well that they came from a lady's handbag and not me,' then PW1, I am sure, would have recorded that fact and he would have been able to recall it in his evidence. The fact is that he recalls nothing of the kind. What he recalls is an emotional outburst without that dimension.

The fact that there is a difference between PW2 and PW3 as to whether or not any denial of the drugs belonging to the defendant at the time he came to put them into the tamper-proof bag, did not raise any doubt in my mind as to the honesty or integrity of PW2 and PW3.

So it comes to this: the point the defence has made on the prosecution case does not begin to make me doubt the bona fides of the officers. There is no evidence to contradict those officers and their evidence makes me sure that this man did possess the drugs at the material time."

11. Those passages very clearly illustrate that the judge had taken into account all of the relevant factors which called for his consideration on this issue. As Mr. Bruce says, the chair-breaking incident was really the only point that the defence had raised and, if there is any criticism, he says it is that the judge spent too long dealing with this topic in his Reasons for Verdict.

12. It is the view of this court that the trial judge did give a fair and conscientious appraisal of the evidence in his Reasons for Verdict.

13. There is no merit in the application and it is, accordingly, dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A. D.P.P. and Mr. Edmond Lee, G.C. for the Respondent

Mr. Christopher Grounds instructed by Messrs. Joseph Ma & Co. for the Applicant.