Lee Kwok Wai v. R.

CACC000687/1993

1993, No. 687
(Criminal)

___________

___________

Coram: The Hon. Yang C.J., Bokhary J.A. and Barnett J. in Court

Date of hearing: 5 October 1994

Date of delivery of judgment: 5 October 1994

_______________

J U D G M E N T

_______________

Barnett J: (giving the Judgment of the Court):

1. On 19th November 1993, the Applicant was convicted after trial by a jury of trafficking in a dangerous drug. On the same day, he was sentenced to 8 years' imprisonment. He now applies for leave to appeal against that conviction and out of time against sentence.

2. The Crown case was that on 17th November 1992 about 9:40 p.m. the Applicant and his girlfriend was stopped by a party of officers from the Customs and Excise Department. This occurred in Tong Tau Po Village, Yuen Long. The Applicant was searched and two keys were found upon him. He was asked what the keys were for and he pointed to nearby Block 4 and said : "Ah sir, it has nothing to do with me. Give me a chance." The Applicant was taken by the Customs and Excise Officers to Block 4. They came to Flat D on the 1st floor and one of the officers asked : "How much "stuff" was there". The Applicant replied about 4 ounces. The flat was then searched. The officers found 134 grams approximately of a mixture containing some 75 grams of salts of esters of morphine. Some other paraphernalia connected with drugs was also found.

3. The Applicant later made a statement under caution. In that statement, he said that he shared the flat with another person "Ah Bo". He said that two days earlier, he had seen "something extra inside". The Applicant said he knew nothing about this and did not know it was dangerous drug.

4. The Applicant gave evidence at his trial. In essence, he repeated what he had said in his statement. He denied asking the Customs and Excise Officers for a chance.

5. A number of grounds has been advanced against the conviction. We need deal only with the first ground. The Applicant clearly was of good character. The Deputy Judge in his summing up made only one reference to this. He simply reminded the jury that the Applicant had said that he had a clear record. The complaint therefore is that the Deputy Judge erred in failing to give a proper direction. The jury should of course have been directed as to the relevance of good character both to credibility and to the propensity to commit a criminal offence. In the light of the Applicant's evidence, both these aspects were crucial. There was plainly a misdirection.

6. In all the circumstances, this is not a case where we can apply the proviso. Accordingly, we give leave to appeal against conviction. We treat the hearing of the application for leave as the hearing of the appeal itself. We allow the appeal. The conviction is quashed under sentence set aside. We are of the view, however, that there should be a re trial.

Representation:

Mr. A.E. Schapel, S.A.C.P. for Crown Prosecutor

Mr. Andrew Macrae inst'd by Director of Legal Aid for Appellant