The Queen v. Yeung Wai Shing and Another

CACC000614/1987

IN THE COURT OF APPEAL

No 614 of 1987

(Criminal)

BETWEEN

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Coram: Hon. Kempster & Penlington, JJ.A., Barnes J

Date of hearing: 8th June 1988

Date of judgment: 8th June 1988

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J U D G M E N T

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Kempster, J.A.:

1. On 25th November 1987 Yeung Wai Shing and Wong Kim Keung were convicted in the District Court by Judge Chism of possessing a dangerous drug for the purpose of unlawful trafficking. The particulars of the charge alleged that they, with another man who pleaded "guilty", on 7th June 1987 outside the premises of the Hong Kong Society for the Prevention of Cruelty to Animals in Homantin had in their possession 213.25 grammes of a mixture containing 21.69 grammes of heroin for the stated purpose.

2. The evidence called by the Crown demonstrated that at such place and time police office saw a particular motor car parked at the junction of Waterloo Road and Tak Cheong Street with the second defendant in the driving seat and another man sitting beside him. It was driven away and later, outside the premises of the Society, brought to a halt by the police officers who bar) followed it in their own vehicle. Three men were then found in the car. They were Yeung Wai Shing, Wong Kim Keung and the man who pleaded "guilty". The latter man pulled a package from under the dashboard of the motor car and cast it away. All three men resisted arrest. Later the contents of the package were analysised. They comprised 213.25 grammes of a mixture containing heroin as stated in the charge.

3. There was found at the back of the van in which the three men had been taken to the police station a bunch of keys. Wong denied any knowledge of them. Later, following an exhaustive search, the keys were found to fit the doors to a flat very near the place where the particular motor car had first been spotted. In that flat were found sufficient traces of dangerous drugs and cellophane bars to prove beyond a peradventure that it had been used for packaging dangerous drugs.

4. Both Yeung and Wong seek leave to appeal against their convictions and we have heard from Mr Poll, on their behalf, an attractive series of arguments suggesting that the judge erred in coming to the conclusions he did. In particular, reference is made to tits first sentence of the Reasons of Verdict which reads:

"The facts are set off in the Summary of Facts."

We have sought to explore the meaning and implication of these words. We are told that in all probability the Summary of Facts, which was certainly alluded to by counsel for the Crown in his closing speech, was used as his opening. It is accordingly our, conclusion that the words in question are to be read in conjunction with those which follow, namely "The first accused pleaded guilty", as indicating the general nature of the case advanced by the Crown as against all three defendants. The point was to some extent of importance because it was urged upon us that the second defendant, Yeung had not on the evidence, in constrast with the Summary of Facts, been shown to have struggled when the car was stopped by the police. However, on examination of the judge's notes it is apparent that the judge was entitled to make the finding he did in that regard having, taken into account, as he did, that applicant's explanation that he was having some difficulty in unfastening his safety belt at the time the police were trying to drag him from the vehicle.

5. The ground strongly relied upon in relation to Yeung is that the judge wrongly concluded that he was, unconvincing and evasive when, under cross-examination. Again, having been shown the relevant passages in the notes of evidence, we are satisfied that there was material upon which the judge was entitled to come to that conclusion. We would add that when questions of demeanour arise this Court is in a relatively poor position to criticise the opinion of the trial judge.

6. Yeung Wai Shing, being the owner, driver and possessor of the keys of a vehicle in which dangerous drugs were carried was subject to presumptions of law which it was for him, on the balance of probability, to rebut. The judge found that he had failed to do so and we are unable to find that he erred. Accordingly the application of Yeung for leave appeal against his conviction is refused.

7. As regards Wong we think the matter having the greatest significance was his denial of ownership of the bunch of keys fitting the locks to the premises subsequently admitted by him, in a cautioned statement, to be his. Traces of a dangerous drug, and packaging having, been found there the inference was inescapable that he was aware that his premises had been used to package drugs for the market and that the parcel thrown from the car derived from such operations. The real question for the judge, having regard to that knowledge and to Wong's presence in the motor car initially seen in proximity to the flat, was whether he was sure that Wong and the other two men were engaged in the joint trafficking enterprise of carrying the package of dangerous drugs from A to B.

8. It is said that the judge gave undue emphasis to the discovery of traces of drug in the flat but those traces demonstrated the reason for the applicant's reluctance to admit ownership of the keys. We do not think either that the judge was required to give any greater consideration to the exculpatory statement which the applicant gave to the police. He considered it and, as he was entitled to do, rejected it as an attempt made after the police had entered the flat to shift all the blame onto the defendant who had pleaded "guilty". Insofar as it is said that the judge pave undue weight to the fact that Wong Kim Keung exercised his right not to give evidence we bear in mind that had that applicant gone into the witness-box there would have been sworn evidence, which could have been tested by cross-examination, to support the written statement.

9. Looking at the evidence as a whole we find that in the absence of evidence from Wong the judge was entitled to draw what he said was the irresistable inference that, as the occupier of the flat where traces of drug and packaging material had been found, he was in that motor car in order, jointly with the other two defendants, to convey drugs packaged in that flat to an unknown destination.

10. Wong's application for leave to appeal against conviction is also dismissed.

Representation:

Mr Michael Poll (Philip S W Wong  & Co) for Defendant/Appellant

Ms L M A Shine for Crown/Respondent