HKSAR v. Wong Yat Sing

CACC 37/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 37 OF 2009

(ON APPEAL FROM DCCC 519/2008)

_______________________

BETWEEN

______________________

Before: Hon Yeung JA , Beeson & Wright JJ

Date of Hearing:  5 November 2009

Date of Judgment: 5 November 2009

______________________

J U D G M E N T

______________________

Hon Yeung JA (giving the judgment of the Court):

1.The applicant (Wong Yat-sing) and Cheung Chun-wing (Cheung) were jointly charged with trafficking in 498.71 grammes of a powder containing 400.98 grammes of ketamine. They pleaded not guilty and stood trial before Deputy Judge Sham in the District Court.

2.At the end of the prosecution case, Cheung decided to plead guilty to the charge and was then sentenced to 3 years and 4 months’ imprisonment.

3.The applicant was convicted after trial and was sentenced to 4 years’ imprisonment. He sought leave to appeal against conviction.

4.On 24 June 2009, Hartmann JA refused to grant leave to the applicant to appeal against conviction and he renews his application before us.

The Prosecution Case

5.On 4 May 2008, a team of police officers, including PC 1699, PC 3749, WPC Yeung Pui-shan and PC 34951, under the leadership of Senior Inspector Ho Chi-ming, spotted a red private car double-parked outside No 162-164 Pratas Street in Shamshuipo at about 9 p.m. Cheung was the driver and the applicant occupied the front passenger seat.

6.The police officers approached the red private car and asked the applicant and Cheung to alight. The applicant opened the car door and got out. PC 1699 saw a transparent plastic bag containing white powder lying on the front passenger seat and that the applicant was holding, in his left hand, a red paper bag containing white powder wrapped in a resealable plastic bag. Cheung opened the door and attempted to flee. He was however subdued by PC 3749 and arrested after a struggle.

7.The applicant was arrested and cautioned. The applicant confessed and said, “Ah Sir, I will only sell the bag on the seat. The other bag is wholly for my own sniffing. Please give (me) a chance.”

8.When further questioned on board a police car, the applicant admitted that the bag of ketamine found on the front passenger seat was for sale to “Wai Man” whereas the other bag was for his “own sniffing”. The applicant refused to answer any question about “Wai Man” and Cheung. He said he obtained the two bags of drug outside New Town Mall at 8 p.m., but refused to disclose the identity of the supplier.

9.PC 1699 made a record of the interview in his notebook and the applicant signed to confirm its contents and that it was given by him freely.

10.The two bags of drug seized from the applicant were handed over to the exhibit officer DPC 34951, who weighed the two bags at the police station and found them to weigh 262 grammes and 253 grammes respectively.

11.The exhibit officer took the two bags of drug to the Government Chemist for examination. It was admitted that they were found to be 248.51 grammes of a powder containing 201.35 grammes of ketamine and 250.14 grammes of a powder containing 199.63 grammes of ketamine respectively. The weight of the two bags of drug as weighed by the Government Chemist was slightly less than that as weighed by the exhibit officer.

The Defence Case

12.The applicant’s case was that the dangerous drugs were planted on him by the police officers. The applicant claimed that he had not made any confession, but was subject to violence and inducement resulting in his signatures appearing on PC 1699’s notebook. The applicant also claimed that he was unaware of the contents of the notebook.

13.The defence further relied on the discrepancies in the weight of the two bags of drug as measured in the police station and by the Government Chemist. It was emphasized that there was no contact evidence linking the applicant to the dangerous drug.

14.The applicant gave evidence and said he just happened to be on board Cheung’s car because he was asking him for a loan to buy a pair of boots as he was starting a new job the following day. The applicant said he met Cheung at 7 to 8 p.m. on 4 May 2008 and Cheung told him that he had an appointment with a friend. The applicant said he was with Cheung for a few minutes and before he was able to get any money, he was intercepted and arrested by the police officers.

15.The applicant said he was then handcuffed and taken to the back seat of the car where an officer grabbed his neck and questioned him about someone surnamed Yeung. The applicant said he did not have any dangerous drug on his person and the police officers did not find any either. He said he saw the bags of ketamine mixture only at the police station.

16.The applicant called Yeung Wai-chi (Yeung) and Cheung to give evidence in his defence, although he said he in fact did not know Yeung.

17.Yeung said he was intercepted by the police officers at about 4.30 p.m. on 4 May 2008 and was found to have possession of 0.2 gramme of cocaine.

18.Yeung said he was then intimidated and coerced to give information when the police officers said that they wanted to arrest a drug trafficker who would supply about 500 grammes of ketamine. Yeung then called Cheung to ask for the supply of 500 grammes of ketamine.

19.According to Yeung, Cheung arranged to meet him at 9 p.m and told him that the price would be $17,000. Cheung also told Yeung that the drug would be placed in the boot of his car and that once Yeung handed him the money, he could take the drug from the boot of the car.

20.Yeung said he informed the police officers of the arrangement and when he arrived at the location where the applicant and Cheung were arrested at about 9 p.m., he saw the police intercepting Cheung’s car and the applicant alighting from the car. Yeung said the applicant was not holding anything in his hand.

21.In his evidence, Cheung also said that he was instructed by “Ah Man” to deliver something to Yeung. He said he collected a red paper bag from someone near his home at 8.15 p.m. and without checking the content, he just put the bag into the boot of his car.

22.Cheung said he received a call from Yeung at 8.30 p.m. and confirmed with him the time of his arrival. Cheung also said the applicant called him asking for a loan of a few hundred dollars and he arranged to meet him at Pratas Street.

23.Cheung said he did not tell the applicant about his appointment to meet Yeung and that the applicant was not holding anything when he was intercepted by the police officers.

24.Contrary to Yeung’s evidence, Cheung said he had not discussed with Yeung about the price of drug and he was not supposed to collect money from Yeung for supplying the drug.

The Judge’s Findings

25.The judge accepted the evidence of the police officers relating to the circumstances in which the applicant made the confession and rejected the applicant’s allegation that he was subject to violence and inducement or that he was unaware of the contents of the confession. The judge ruled the applicant’s confession admissible as evidence.

26.The judge also rejected the evidence of the applicant and that of his witnesses relating to the circumstances in which the applicant was arrested and the drug found. The judge accepted the evidence of the police officers.

27.The judge, on the discrepancies in the weight of the drug as measured in the police station and by the Government Chemist, found that the discrepancies were the result of an innocuous mistake rather than that of any foul play.

28.On the facts as found by him, the judge found the charge against the applicant proved to the required standard, and he therefore convicted the applicant as charged.

Grounds of Appeal

29.The applicant, in his written submission, repeated what, according to him, happened on 4 May 2008. He said he was in financial difficulty and was meeting Cheung to get a loan of $500. However, the police arrested him when he was speaking to Cheung and he was then assaulted. He said he was questioned on matters that he knew nothing about and that he only saw the bags of ketamine for the first time at the police station.

30.The applicant suggested that he was misled into signing on the police notebook, the contents of which were completely untrue and did not come from him. He emphasized that the contents of the police notebook were so childlike and were a complete fabrication. He even suggested that some of his signatures were forged.

31.The applicant said that he was a bankrupt and could not afford to pay $50,000 to $60,000 to get the “stuff”.

32.The applicant emphasized the discrepancies in the weight of the ketamine. He suggested that someone might have changed the bags of drug when his fingerprints did not appear and there were no traces of ketamine on his clothing. He complained that Yeung and his wife had not been given the opportunity to identify the officers who were involved in fabricating the case against him.

33.The applicant argued that the police officers had lied to wrong him because they were looking for a case involving a large amount of drug and he was made a scapegoat.

34.The applicant, in his oral submission, emphasizes that Yeung was able to identify the police officers, yet the police officers said they had never met him. The implication is that Yeung did provide information to the police before the applicant’s arrest and that the police officers had lied. The applicant also repeats the lack of fingerprint evidence linking him to the two bags of drug.

35.The applicant says that if he had confessed as alleged by the police, he would not have denied the charge and thus failed to obtain a discount in sentence.

Discussion

36.The evidence against the applicant was simple and straightforward. Having carefully evaluated the evidence, the judge found that one packet of drug was found on the passenger seat and the applicant held the other when he was getting out of the car. The judge further found that the applicant had voluntarily made the admission that the packets of drug were either for sale or for his own consumption.

37.The judge had also dealt with the discrepancies relating to the weight of the drugs and concluded that the discrepancies were the result of an innocuous mistake. The judge explained in detail why he did not accept the evidence of the applicant and that of his witnesses.

38.The judge was entitled to accept the prosecution evidence against the applicant, and reject his evidence and that of Cheung and Yeung. On the evidence of the prosecution as accepted by the judge, the applicant was guilty as charged.

39.None of the matters raised by the applicant causes us any concern. In our view, the applicant was rightly convicted and there is nothing unsafe or unsatisfactory about his conviction.

40.We dismiss the application for leave to appeal against conviction.

41.This is an entirely unmeritorious appeal and in exercising our power under s 83W of the Criminal Procedure Ordinance, Cap 221, we order that 3 months of the time that the applicant had served pending this application shall not be reckoned as part of his sentence.

Mr David Leung (Ag.) SADPP of the Department of Justice for the Respondent.

Applicant: In Person.