R. v. Ip Ming Sang

CACC000611/1996

IN THE COURT OF APPEAL

1996, No. 611

(Criminal)

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Coram: Hon Bokhary J.A., Liu and Mayo JJ.A.

Date of hearing: 6 June 1997

Date of judgment: 6 June 1997

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted after a trial before HH Judge Kilgour of trafficking in dangerous drugs. The amount of dangerous drugs involved was 26.81 grams of a mixture containing 16.25 grams of heroin hydrochloride. He was sentenced to 4 1/2 years' imprisonment. Originally he sought leave to appeal against both his conviction and sentence. We have been informed that he has now abandoned the latter application.

2. There was a basic conflict between the cases of the prosecution and the defence. According to the prosecution case a team of police officers were laying ambush on the 12/F of a building in Tung Choi Street, Kowloon in the early hours of the morning of 3 January 1996. Their target was a lady who was in occupation of Flat 1 on the 12/F. They had a warrant to enter and search the flat. The four police officers who were members of the team concealed themselves behind the firedoor on the 12/F.

3. After about ½ hour a man who it later transpired was the applicant came up to the 12/F and knocked on the door. No one answered the door and the man turned and started to leave. He was then intercepted by one of the police officers who said that he was going to search him. He did so and found a packet which contained the dangerous drugs which are described in the particulars of the charge.

4. PW1 the officer who conducted the search gave evidence that the applicant admitted that the package contained dangerous drugs and that he was delivering the drugs to someone at the time. He said that he was expecting to collect $7,500. He asked for a chance.

5. PW3 the officer in charge of the operation gave evidence that some police officers did enter the flat and searched it. As they did not find any dangerous drugs they did not arrest the lady who was in occupation of the flat.

6. The applicant who gave evidence said that he had gone to the flat to recover a debt of $3,000 which had been outstanding for some time. He had gone at the invitation of the lady who owed the money. He had gone up to the 13/F and walked down the stairs to the 12/F. He had knocked on the door and had gained admission to the flat.

7. While he was in the flat four men rushed in claiming to be police officers. They had conducted a search and found a packet. When they asked the lady about the packet she had said that it belonged to him. The police had then arrested him.

8. It is clear from the careful analysis of the judge in his Reasons for Verdict that he accepted in the main the evidence of the police officers and rejected the testimony of the applicant.

9. There are four grounds of appeal in the perfected grounds. It is convenient to deal with the first two grounds together. They are as follows:

"1. At page 16, Reasons for Verdict, the trial judge held in against the Appellant that:

(a) 'he did nothing more subsequently to protest his interest,' and;

(b) there was no complaint by the Appellant that the police were saying that the drugs were found on him.

This approach was wrong in law, ignored the implications of the Appellant's right to silence and was an effective reversal of the onus of proof.

2. At page 16, Reasons for Verdict, the trial judge held it against the Appellant that 'he could give no reason why she should have any motive for framing him except, of course a disinclination or a will on her part to exculpate herself.' Apart from the fact that this comment is also an apparent of the onus of proof. It ignores the fact that the woman has the very best motive (namely that the drugs were her) for saying that the drugs belonged to the Appellant."

10. It is necessary to consider these complaints in their proper context. What the judge was attempting to do in this part of his Reasons was to analyse the evidence which had been given by the applicant. Before doing so he had made it abundantly clear that throughout the case the burden of proof rested upon the prosecution and that there was no requirement whatever for the applicant to prove anything at all.

11. To get the full flavour of the passages complained of, the passage should be read as a whole. It reads:

"There is then the account of what he says happened next, which was that he alleges he gained access into Room 1, whereas the four police officers say he did not. He says that he made a simple assertion contradicting the woman's assertion that the package belonged to him, but it seems to me extraordinary that even if he did that, that he did nothing more subsequently to protect his interests. Of course, he has said in evidence that he did not know until he got to the police station that what was in the packet was suspected dangerous drugs. Were the police telling the truth when they say that there could have been no doubt at the scene that what they had was in fact suspected dangerous drugs, and that was what he was arrested for? Of course, he has to establish nothing, but it does seem extraordinary that there was no apparent complaint about what turned out to be not a trivial matter, but a very serious matter, namely trafficking in dangerous drugs, which was the charge that ensued.

The defendant is a 28 year old man, and although I do not hold it against him in the context of these charges, he has been to court before and he must have some comprehension of the possibilities of being charged with some kind of drug offence in this case. He had helped this woman apparently, to the extent of giving her a loan he says, and he could give no reason why she should have any motive for framing him, except of course, a disinclination or a will on her part, to exculpate herself."

12. These grounds are not made out. There is no reason at all to conclude that the judge was shifting the evidential burden.

13. Ground 3 is framed in this way:

"At page 19, Reasons for Verdict, the trial judge decided to take no notice of the fact that the woman was not charged. This is unexceptional. However, he did not consider, properly or at all, the fact that (given that she was the police target) she was not even interviewed."

14. This is all rather speculative.

15. What the judge does say is that if the applicant's evidence was true there was no reason why they should not have charged the lady rather than the applicant. This ground is without merit.

16. The 4th ground was not pursued.

17. The judge carefully weighed all of the evidence and there is no justification for interfering with the conclusion he reached that the applicant was guilty as charged. The application for leave to appeal against the conviction is dismissed.

Representation:

Mr A.A. Bruce, QC and Mr Sharman Lam for Crown Prosecutor

Mr John McNamara (M/S Wong & Partners) for Applicant