HKSAR v. Tsang Siu Ngau

CACC 157/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2012

(ON APPEAL FROM DCCC 1338 OF 2011)

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BETWEEN

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Hon Lunn JA (giving the judgment of the court):

1.The applicant, who is unrepresented, seeks leave to appeal against conviction and sentence. Following a trial the applicant was convicted by Deputy District Court Judge H F Woo on 13 April 2012 of a single charge of unlawfully trafficking in a dangerous drug, namely 50 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 6 years’ imprisonment.

The charge

2.The charge alleged that the applicant unlawfully trafficked in 50 grammes of ketamine on 11 October 2011 at the 3^rd floor of Multifield Plaza, 3-7A Prat Avenue in Tsim Sha Tsui.

THE TRIAL

The prosecution case

3.The prosecution case was that at about 10:30 p.m. on 11 October 2011 the applicant had been intercepted by two police officers who had seen him wandering around in the corridor on the third floor of Multifield Plaza.  A search of his person revealed a plastic bag in his right front trouser pocket.  It was found to contain 14 re-sealable plastic bags, each of which contained a quantity of ketamine.  A set of electronic scales and 37 re-sealable plastic bags were found in a shoulder bag carried by the applicant.

The defence case

4.The defendant testified in the defence case denying that the ketamine, electronic scales and the re-sealable plastic bags were his or had been found in his possession.  He said that he was at the place at which he had been arrested in order to locate a bag of mobile telephones, which he was to deliver for payment of $1,000.  That was an arrangement he had reached earlier that evening on the telephone with Sai Wai, a person he had met several times in amusement game centres.  For his part, the latter had put him in contact by telephone with Leung Wing Lam, whom he met on the ground floor of Multifield Plaza shortly before his arrest.  At Leung’s request he went to the third floor to recover the bag of telephones which Leung had told him was located on an air conditioning unit.  Leung remained on the ground floor.  A group of police officers detained him as he was in the act of recovering a plastic bag from the top of the air conditioning unit.  He accepted that it contained the packets of ketamine, but asserted that, in addition, the set of electronic scales and re-sealable plastic bags were in that plastic bag.  They had not been found in his shoulder bag.

REASONS FOR VERDICT

5.Although the judge acknowledged that there was a discrepancy between the evidence of the two police officers, as to where it was that the defendant’s black shoulder bag was seized, the judge accepted their evidence that a plastic bag containing 14 packets of ketamine had been found in the applicant’s front right trouser pocket and the set of electronic scales and re-sealable plastic bags found in his shoulder bag.  Of the discrepancy, the judge noted that SPC 52382 “seemed to indicate” that he had handed over the defendant’s shoulder bag to SPC 51645 at the scene of arrest, whereas SPC 51645 said that the shoulder bag had been handed to him by SPC 52382 at the police station.  The judge stated that she found that discrepancy to be minor and not one which affected their overall credibility and reliability.

6.The judge found the applicant’s testimony to be inconsistent and conflicting in respect of the contacts that he said he had with Sai Wai and Leung.  She described his account of the arrangements to pick up mobile telephones placed on an air conditioning unit for a reward of $1,000 as being “inconceivable”.  Having determined the applicant’s evidence to be “illogical and incredible” the judge rejected him as a “dishonest witness”.

7.In the result, the judge found that the ketamine, the subject of the charge, was found in the applicant’s trouser pocket as the police officers testified.  Having regard to the fact that it was packaged in 14 packets, together with the finding of the set of electronic scales and other re-sealable packets the judge determined that the applicant was in possession of the ketamine for the purpose of unlawful trafficking.

Grounds of appeal against conviction and sentence

8.In home-made grounds of appeal, attached to Form XI, the applicant complained simply that he feels “aggrieved”, asserting that the sentence was “too heavy”.  In subsequent written communications with the court the applicant has raised a number of specific grounds of appeal against conviction.  Firstly, he asserts that SPC 52382 and SPC 51645 testified that the white plastic bag found in the applicant’s trouser pocket and found to contain the 14 packets of ketamine was a ‘Park n Shop’ bag, whereas the plastic bag produced as an exhibit at trial was a ‘7-Eleven’ bag.  Secondly, he contends that the two police officers testified that the search of the shoulder bag was first conducted at the police station in the presence of the Duty Officer.  Thirdly, he complains that, although he was taken by the two arresting officers and the other police officers to his home for a search after he had been taken first to the police station, no mention was made of that by the two police officers in their testimony nor was reference made to it in their witness statements.

A CONSDERATION OF THE SUBMISSIONS

9.It is apparent from the transcript of the testimony of the two police officers, SPC 52382 and SPC 51645, that neither of the officers described the white plastic bag found in the defendant’s trouser pocket as being a ‘Park n Shop’ bag.  In fact, neither of them gave any description of the bag other than that it was a plastic bag.  It is clear from the photographs and from the exhibit itself that the bag carries the brand name, ‘7-Eleven’.  Both officers identified photograph 5, which depicts the plastic bag with the ‘7-Eleven’ logo, as the bag containing the 14 packets of ketamine found in the applicant’s trouser pockets.

10.It was the evidence of both police officers that the defendant’s shoulder bag had been searched by SPC 52382 at the scene of the defendant’s arrest.  SPC 52382 said that he had found a bag of re-sealable plastic bags and a set of electronic scales inside the defendant’s bag.  For his part, SPC 51645 said that after his colleague SPC 52382 searched the defendant’s bag and located those items he had passed the set of electronic scales and a bag of re-sealable plastic bags to him.  He counted the latter, noting that there were 37 re-sealable plastic bags.

11.The ‘discrepancy’ described by the judge as to where it was the defendant’s shoulder bag had been seized was a reference to the seizure of the bag as an exhibit, not to when the bag was searched and its contents found.  There was no dispute between the officers that the bag was searched at the scene of arrest.

12.There was no reference by either of the two police officers in their testimony to having taken the applicant to his home after he had first been taken to Tsim Sha Tsui Police Station.  The matter was not raised with them in cross-examination.  From the judge’s summary of the applicant’s testimony, it does not appear to have been a matter about which the applicant testified either.  From enquiries made by counsel for the respondent it appears that the applicant is correct in asserting that he was taken to his home after he was taken to the police station.  A reference to that fact is to be found in the notebook entry of SPC 52382. It is apparent from the cross-examination of that officer by counsel appearing on behalf of the applicant that counsel was given access to the notebook.  Notwithstanding that fact, there was no cross-examination on the issue.

Conclusion

13.Clearly, there is no merit in any of the matters raised by the applicant in his proposed grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is refused.

SENTENCE

14.In sentencing the applicant, the judge noted that the 50 grammes of ketamine in respect of which the applicant trafficked unlawfully falls at the top of the band of 10 to 50 grammes of ketamine, for which the range of sentence is between 4 and 6 years’ imprisonment and at the bottom of the band of 50 to 300 grammes of ketamne, for which the range of sentence is between 6 and 9 years’ imprisonment, as stipulated in the judgment of this court in the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.

15.The judge was entitled to disregard the applicant’s previous good character, as she said she did, having regard to the seriousness of the offence.  Similarly, the applicant having been convicted after trial, the judge was entitled to determine that there was no factor of mitigation to reduce the sentence of 6 years’ imprisonment, which she identified as being appropriate in all the circumstances.

Conclusion

16.We are satisfied that the sentence of 6 years’ imprisonment imposed on the applicant was entirely appropriate.  Accordingly, the application for leave to appeal against sentence is refused.

Mr Francis Lo SADPP, of the Department of Justice, for the Respondent

Applicant appeared in person