HKSAR v. Lau Yuen Tat

FAMC No. 14 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 142 OF 2009)

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Between:

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DETERMINATION

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Mr Justice Chan PJ:

1.The applicant was convicted in the District Court of trafficking in a dangerous drug, namely 18.79 gm of ketamine (commonly known as K-Chai). When he was arrested at 1.30 in the morning, he was found sitting in the driver’s seat of a private car which was parked in Canton Road and was suspected of having just taken the drug. The drug in question together with $22,847 cash and 790 RMB were found in a waist bag he was carrying. He explained that he had just bought the drug for his own consumption and that the money was kept by him for the daily operation of his waste and scrap recycling business. After having taken the drug, he fell asleep and since he had to work early in the morning, he decided to spend the night in the car.

2.Having analysed the evidence, the trial judge gave various reasons for rejecting the applicant’s evidence and convicted him of the charge. On appeal, the Court of Appeal considered that one of the reasons given by the judge was “questionable” (or “open to discussion”): that is, the effect of the drug was to cause excitement and hallucination, instead of making one feel sleepy, as the applicant alleged. However, the Court of Appeal, after examining all the evidence, held that the applicant’s evidence regarding his dealing with the alleged supplier and the presence of the large sum of money was incredible and that the judge had sufficient grounds to infer that the applicant possessed the drug for the purpose of trafficking.

3.In seeking leave to appeal on the substantial and grave injustice ground, Mr Wong Po Wing for the applicant submits that the trial judge had made a very grave error, so fundamental that the Court of Appeal should have quashed the conviction on this basis alone. Counsel further argues that some of the evidence had been ignored by the lower courts and that the evidence before the court when considered carefully was not sufficient to support the conviction.

4.We are not satisfied that the judge’s error was so fundamental that the conviction should have been quashed on this basis alone and that the Court of Appeal in not quashing the conviction had departed from the accepted norms. We agree with the Court of Appeal that apart from the questionable reliance on the possible effect of the drug, there are good reasons for the judge to reject the applicant’s explanation that the drug was for his own consumption and to convict him. All the evidence had been sufficiently considered and analysed by the lower courts. As we have emphasised before, this Court does not act as a second appellate court. We are not satisfied that it is reasonably arguable that the applicant has suffered any substantial and grave injustice. The application is accordingly dismissed.

Mr Wong Po Wing, instructed by Messrs Joseph C T Lee & Co. and assigned by the Legal Aid Department, for the applicant

Ms Polly Wan, SPP of the Department of justice, for the respondent