R. v. Chong Chiu Ching

CACC000625/1996

IN THE COURT OF APPEAL

1996, No. 625

(Criminal)

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Coram: Hon Nazareth Atg C.J. , Mortimer and Ching JJ.A. in Court

Date of hearing: 27 March 1997

Date of judgment: 27 March 1997

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J U D G M E N T

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Nazareth Atg CJ (giving the judgment of the Court) :

1. The applicant, Chong Chiu-ching, was convicted by His Honour Judge Bailey in the District Court on 30th October 1996 of trafficking in dangerous drugs and sentenced to imprisonment for 4 years. He now seeks leave to appeal against conviction.

2. The facts are as follows. On 14th December 1995, the day of the offence charged, two police officers, to whom we shall refer as PW1 and PW2, had the applicant Chong and a female ("Miss Hung") under observation at the Outlying Ferry Pier in Central. In the waiting area for the Cheung Chau ferry, they saw the applicant give Miss Hung a small rectangular object, that was about 4-5 inches in length and silver in colour. Keeping the two under observation, the police officers followed them to Cheung Chau where the two separated. Both were then detained and taken to Cheung Chau Police Station.

3. In the left sleeve of Miss Hung's jacket, a small "Darlie" toothpaste packet was found wrapped in silver paper. In it were six small transparent plastic packets of white power which on chemical analysis were found to be 82.66 grammes of a mixture containing 14.06 grammes of heroin hydrocholoride. These were the quantities of drugs that were specified in the charge and upon which the applicant was convicted.

4. Miss Hung was also charged, and originally indicated that she would plead guilty. Subsequently she apparently changed her mind, and because she was indisposed, the judge proceeded the case with the case against the applicant on his own.

5. Mr Richard Wong, who appears for the applicant before us but did not appear below, relies upon the perfected grounds of appeal which are all concerned with the question of whether the package found up Miss Hung's sleeve was the package the two police officers say the applicant had handed to Miss Hung. He submits that the police officers being on observation or surveillance duty must have been keeping a very close eye on the applicant and Miss Hung. Both the police officers said that their observation was not obstructed. PW1 said that he had not lost sight of Miss Hung from the time she passed through the ticket barrier until he intercepted her in Cheung Chau. Yet, Mr Wong submits, there were material discrepancies in their evidence. Those material discrepancies, on the basis of the perfected grounds, he identifies as follows:

(1) PW1 said that the applicant took the lead and paid for the tickets whereas PW2 said the lady, Miss Hung, took the lead and paid for the tickets.

What is material about this point, Mr Wong was not able to tell us. We cannot for ourselves see what was material.

(2) PW1 said he saw Miss Hung after receiving the object, place it in her handbag, yet he failed to observe how and when the lady moved the object from her handbag to her left sleeve if she did it at all.

(3) PW2 could only see the lady after she received it from the applicant and held it in her hand. He failed to see her put it in her handbag.

Those then are the nature of the discrepancies.

6. It has to be mentioned at this stage that these police officers had the two suspects under observation for over an hour, i.e. the time it took to get from Hong Kong to Cheung Chau. While one would readily see an object being handed over, the possibility that it was extracted from the bag and put into the sleeve might have occurred in a split second at any moment and not been noticed by the policemen. At any rate these points were made to the judge below. He saw and heard the evidence of the police officers. He considered the points. He referred to one of the discrepancies as being minor and immaterial, and added that the different versions of who paid for the ferry tickets caused him no doubt as to the reliability or credibility of those two witnesses. We can see no reason whatsoever why we should take a different view. It seems to us that he took a sensible view. These cannot be said to be material matters. They provide us no reasons for interfering. We did not call upon Mr Bruce, for the respondent, and we have to say that this sort of point is really a waste of the court's time. As we say, the judge was perfectly entitled to accept the evidence of PW1 and PW2 and to come to the conclusion he did. Indeed, if anything he seems to have taken a sensible view that was right.

7. There is no merit whatsoever in the grounds. We refuse leave to appeal.

Representation:

Mr Richard Wong (DLA) for the Applicant

Mr A.A. Bruce QC and Mr Edmond Lee (Crown Prosecutor) for Crown/Respondent