HKSAR v. Chan Chun Kam

CACC000625/1999

CACC 625/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 625 OF 1999

(ON APPEAL FROM HCCC 28/1999)

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Coram: Hon Stuart-Moore VP, Mayo VP and Keith JA in Court

Date of Hearing: 23 June 2000

Date of Judgment: 23 June 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of trafficking in dangerous drugs after a trial in the High Court before Pang J and a jury. He was sentenced to 18 years imprisonment. He now seeks leave to appeal against his conviction and sentence.

2. The charge read:

"STATEMENT OF OFFENCE

Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

CHAN Chun-kam, on the 23rd day of September, 1998 at Room 805, Ka Yee Lau, Ka Wai Chuen, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficking in dangerous drugs, namely 611.18 grammes of a crystalline solid containing 586.22 grammes of methamphetamine hydrochloride and 0.45 gramme of a mixture containing 0.37 gramme of cocaine hydrochloride."

3. The facts were simple and straight forward. Police officers saw the applicant coming out of a flat referred to in the charge in the early hours of the morning wearing shorts. He was naked above the waist. The officers informed him that they had a warrant to search the flat. They then proceeded to do so. They found the dangerous drugs referred to in the charge in a metal pot covered by a lid in the kitchen. Fingerprints were lifted and a subsequent examination revealed that one of these could be matched with the applicant's left ring finger. A search was made of the applicant's person and $45,000 was found in his pocket.

4. When the applicant was arrested, he was cautioned and he declined to say anything.

5. At his trial he did not give evidence.

6. The only matter raised by the applicant in his written grounds is that the Judge failed to direct the jury that the benefit of the doubt should be given to the defendant.

7. At p. 2 of the summing-up the Judge said:

"Now, I would like to deal with two very important matters now. One is the burden of proof and the other is the standard of proof. The burden of proving the guilt of a defendant lies upon the prosecution throughout this trial. It is for the prosecution to prove the defendant's guilt. The defendant does not have to prove his innocence, or indeed anything. The standard of proof which the prosecution has to achieve if it is to obtain a conviction is proof beyond reasonable doubt. This means that the prosecution must satisfy you so that you are sure of the defendant's guilt, and nothing less than that will do.

You must not equate suspicion with guilt. Even if you think the defendant is probably guilty, this is not guilt. You must be satisfied so that you are sure that he is guilty before you can convict him of the charge."

8. This was an impeccable direction. The applicant did not add anything before us. Nothing which has been raised by the applicant leads us to consider that the conviction was in any way unsafe or unsatisfactory and the application is dismissed.

9. So far as the application for leave to appeal against sentence is concerned it is also without merit. The sentence which was imposed was in conformity with the guidelines which have been laid down for this offence and it cannot in anyway be said that the sentence was either manifestly excessive or wrong in principle. That application is also dismissed.

Representation:

Ms Mary Sin, SADPP of the Department of Justice, for the respondent

Chan Chun-kam, applicant in person