HKSAR v. Yeung Chi Keung

Case No.CACC 518/2012

Court

Court of Appeal

Date19 Nov 2013

Judge—

Case Document

100%

CACC 518/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 518 OF 2012

(ON APPEAL FROM DCCC NO. 554 OF 2012)

________________________

BETWEEN

	HKSAR	Respondent
	And
	YEUNG CHI KEUNG (楊志強)	Applicant

________________________

Before: Hon Lunn JA, Barnes and McWalters JJs in Court

Date of Hearing: 19 November 2013

Date of Judgment: 19 November 2013

Date of Reasons for Judgment: 11 December 2013

_______________________________

REASONS FOR JUDGMENT

_______________________________

Hon Lunn JA (giving the Reasons for Judgment of the Court):

1.The applicant sought leave to appeal his conviction after trial on 14 December 2012 by District Court Judge S. D’Almada Remedios of a charge of unlawfully trafficking in dangerous drugs on 26 March 2012, namely 32.30 grammes of ketamine and 2.79 grammes of cocaine and in respect of the sentence of 5 years and 6 months’ imprisonment imposed on him on the same date for that conviction. Mr McGowan appeared for the applicant in respect of the application for leave to appeal against conviction, whereas the applicant appeared in person in respect of the application for leave to appeal against sentence. We dismissed each of the applications and said that we would give our reasons for so doing in due course. We do so now.

THE TRIAL

The prosecution case

2.The prosecution case at trial was that, whilst seated in the rear seat of a taxi, parked outside Wah Yu Houses, Wah Fu Estate in Pok Fu Lam the applicant had received a pink plastic bag, which contained the dangerous drugs the subject of the charge, from Tam Lok Sin (Charge 2). The latter pleaded guilty to a separate charge (Charge 1) on the same charge sheet, in which the Particulars of Offence alleged against him were identical to those alleged against the applicant in Charge 2.

3.The prosecution relied on the testimony of the taxi driver, Mr Lee Cheuk Fai, and PC 54753, Koo Tin. Mr Lee testified that the applicant had boarded his taxi in Wanchai at about 5:45 p.m. and had asked to be taken first to Wah Fu Estate and then to Tin Wan. On arrival at the former destination the applicant had made a telephone call and said, “I have arrived at the entrance of the Estate”. Mr Lee drove his taxi to the entrance of Wah Yu House where he parked the vehicle and turned off the engine. After a little while the applicant disembarked from the vehicle saying that he was leaving his laptop in the taxi. Mr Lee noticed a laptop and a yellow soft drink carton box lying on the rear seat of the vehicle. The applicant smoked a cigarette as he stood nearby to the taxi. Whilst he was doing that, Mr Lee noticed a marked police van parking nearby, opposite Wah Yu House. One or two minutes after the applicant had re-boarded the taxi, Mr Lee noticed a man walking out of Wah Yu House towards the taxi. Assuming the man was going to board the taxi, he re-started the taxi engine. He said that the right rear door of the taxi was opened. He did not know if that was done by the applicant or the man outside the taxi. The applicant spoke to that man, “Get into the car first, get into the car first.” Then, he saw policemen running towards his vehicle.

4.PC 54753 said that both prior to and at the time of the handover of the pink plastic bag he occupied a seat in the second row of a marked police van on its nearside, which was parked in the vicinity of Wah Yu House, as described in a sketch that he drew.[1] He observed that the applicant disembarked from the parked taxi, after which he smoked a cigarette and conducted a telephone conversation on his mobile telephone before returning, via the left rear door of the taxi, to resume his seat. Soon afterwards, at about 18:04, he saw a man, identified subsequently to be Tam Lok Sin, emerge from Wah Yu House and walk to the taxi. The right rear door of the taxi was opened and he observed Tam Lok Sin using his right hand to pass the pink plastic bag to the extended right hand of the applicant. He was about 8 to 10 meters away from the two men as the plastic bag was handed between them. The light by which he made the observation was very bright.

5.Having observed the transfer of the plastic bag from Tam Lok Sin to the applicant, PC 54753 approached the applicant as he sat in the rear seat of the taxi and identified himself, showing him his warrant card after which he conducted a search of the rear seat. He found a laptop computer and the pink bag. Inside the latter, he found yellow coloured pellets contained in a plastic re-sealable bag inside a lemon tea carton box and a white crystalline substance contained in a Marlboro cigarette pack, which he suspected to be dangerous drugs. He received no response from the applicant when he asked him, “What are these?”

The defence case

6.The applicant gave evidence in the defence case. He said that he lived at Wah Fu Estate with his mother and younger sister. He accepted that he had boarded the taxi in Wanchai and that he was in possession of a laptop computer, which he said belonged to his friend Alan. Having collected the computer from a computer repair shop in Wanchai he was delivering it to Alan at Wah Yu House first, before continuing his journey to meet his girlfriend at Tin Wan. He had provided the two destinations to the taxi driver.

7.On arrival at the entrance of Wah Fu Estate the applicant said that he called Alan on his mobile telephone to advise him of his impending arrival. He made a second telephone call to Alan confirming his arrival a little while later at Wu Fu House. Having been told that Alan needed to go to the toilet before he could meet him, the applicant got out of the taxi and smoked a cigarette. Although he made multiple telephone calls to Alan as he waited he was unsuccessful in making a connected call. Finally, an unknown person answered his last call telling him to call again later. As a result, the applicant resumed his seat in the taxi and continued to wait.

8.Then, the applicant said that he saw Tam Lok Sin, with whom he was acquainted, approaching the taxi from its right-hand side. So, he invited him to board the taxi to have a chat. For his part, Tam Lok Sin opened the taxi door and threw a plastic bag inside the taxi. He did not answer the applicant’s enquiries as to what it was. Then, a party of police officers arrived and intercepted the two of them. The applicant said that he did not touch or open the plastic bag and did not know what it contained. It was an admitted fact that neither the applicant’s DNA nor his fingerprints were found on the pink plastic bag or any of its contents.

Reasons for Verdict

9.At an early stage in her Reasons for Verdict the judge identified what she described as being the main issue, namely whether or not it was proved that the applicant was in possession of the dangerous drugs. She posed a series of rhetorical questions relevant to the resolution of that issue:[2]

“(i) How did the plastic bag with the drugs get from D1’s hand into the rear seat of the taxi?

(ii) Did D1 hand over and the defendant receive the plastic bag from D1 (as was the police officer PW2’s evidence)? or

(iii) Did D1 throw the plastic bag into the taxi unexpectedly and with (out) any prior knowledge or arrangement of the defendant? (the defendant’s evidence)

(iv) If the defendant possessed the plastic bag did he have had knowledge of the dangerous drugs in the bag?”

She said that a resolution of those issues, “turns principally on the credibility of PW 2, the police officer”. (PC 54753)

10.The judge first analysed the evidence of the applicant. She found that his account of having arranged to meet Alan and, by coincidence, encountering an acquaintance, Tam Sin Lok, who had then thrown the plastic bag into the rear of the taxi was, “wholly unworthy of belief”.[3]

11.The judge noted that although the applicant testified that he had made arrangements to meet Alan in order to return to him his laptop the applicant had “lost contact” with Alan up until the time of the trial.[4] She noted that the applicant testified that he did not know why Alan had not turned up to collect his computer, notwithstanding the fact that the applicant remained together with the police outside Wah Fu House some time after he had been intercepted. In the result, the judge determined Alan to be a “fictitious person made up by the defendant” and the applicant’s testimony of the arrangement to meet Alan to be a “fabricated account in an attempt to give an innocent explanation” of why the applicant was there.[5] The judge found that the phone calls that the applicant made were to Tam Lok Sin, not to Alan.[6]

12.The judge rejected the applicant’s testimony that he had invited Tam Lok Sin to board the taxi in order to exchange pleasantries.[7] She determined that the applicant had twice asked Tam Lok Sin, “Get on board first” in order to make for a more discreet exchange of the plastic bag, given that the presence of police officers in the immediate vicinity was obvious. Finally, the judge concluded that the fact that Tam Lok Sin emerged from Wah Fu House and made his way directly towards the parked taxi was because the applicant had telephoned him from the entrance to Wah Fu Estate to advise him of his impending arrival.

13.The judge said that she found that PC 54753 had been able to see Tam Lok Sin, “hand the plastic bag to the defendant and the defendant receive it.”[8] In making that finding, she said that she was aware of the absence of DNA or fingerprint evidence connecting the applicant with the plastic bag or its contents. In the result, she concluded that the applicant, “took possession of the plastic bag and knew the contents to contain dangerous drugs”.[9]

14.Of the position from which PC 54753 had made that observation, she noted that, given that the police van was higher than the taxi, the observation was made from a “raised level”. She said that she was satisfied that there was sufficient natural light to make that observation at a distance of 8 to 10 meters. Further, there was nothing to block his view.[10]

15.In light of the findings that the applicant was in possession of the dangerous drugs and knew that to be the case, the judge noted that the applicant’s proposed destination, Tin Wan, was away from where he lived. Having regard to the total number of packets of the dangerous drugs, namely 18 packets, the weight of the dangerous drugs and value the judge determined that the “facts support the supply of drugs to others”.[11] Accordingly, the judge determined that the applicant was guilty of unlawful trafficking in those dangerous drugs.

Reasons for sentence

16.In her Reasons for Sentence, the judge noted that the applicant was 32 years of age and, although the applicant had 12 previous convictions resulting from four separate appearances in court, that he had not been convicted of any offence in respect of dangerous drugs. Furthermore, his last conviction was in 2004.

Starting point

17.The judge said that she had regard to the guidelines for sentencing provided by this Court in R v Lau Tak Ming[12], in respect of heroin and cocaine, and HKSAR v Hii Siew Cheng[13] in respect of ketamine. Noting that the total amount of ketamine, namely to 32.30 grammes, fell in the range of 10 to 50 grammes in respect of which the suggested range of sentence was 4 to 6 years’ imprisonment, the judge stipulated a starting point of 5 years’ imprisonment after trial. Similarly, in respect of cocaine she noted that the 2.79 grammes of cocaine fell in the range of up to 10 grammes for which the suggested range of sentence was between 2 and 5 years’ imprisonment and stipulated a starting point after trial of 2 years and 6 months’ imprisonment. Then, the judge said that she approached the stipulation of the overall starting point for sentence from an individual approach to sentence in which regard is had to the starting points taken for sentence in determining the overall appropriate starting point. In the result, she stipulated a starting point for sentence for the applicant of 5 years and 6 months’ imprisonment.

Sentence

18.Given that the applicant had been convicted after trial, and was not entitled to any discount of sentence from that taken as the starting point, the judge sentenced the applicant to 5 years and 6 months’ imprisonment.

Notice of Motion

19.By a Notice of Motion, filed with the court on 8 November 2013, Mr McGowan seeks leave, pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221, to adduce new evidence at the hearing of the appeal, namely:

(a) an affirmation dated 8 November 2013 of Ms Ng Sau Kuen, the applicant’s half sister; and

(b) a statement dated 7 November 2013 of Mr Suen Yuk Lung, the manager of ‘Repair Station’ a computer repair shop and relevant documentary records.

As to (a)

20.Exhibited to Ms Ng’s affirmation are two sets of documentary exhibits sought to be adduced in the hearing of the application for leave to appeal against conviction. First, the mobile telephone records for the period 9 March to 8 April 2012 for a telephone with the number 9387 0063, which telephone the deponent asserts was used by the applicant, albeit that it was registered in Ms Ng’s name. Between 17:37 and 17:55 four connections were made between that mobile telephone and mobile telephone number 5377 8262. Secondly, pages of records maintained by Repair Station for the month of March 2012, which records are said to relate to the repair of the computer found in the possession of the applicant at the time of his arrest. Finally, Ms Ng states that at the end of 2011 she and the applicant encountered a man, whom the applicant told her subsequently was his friend Alan who lived in Wah Fu Estate.

As to (b)

21.Exhibited to Mr Suen Yuk Ling’s statement are documentary records of Repair Station, a business which operates at an address at 298, Hennessy Road, Wanchai of which he is the manager. One of those records describes the receipt of a Fujisu LH531 laptop computer on 19 March 2012, in which the customer and his contact details are described as, “Mr Yeung-9387 0063/5733 8262”. The laptop was noted as having been retrieved on 26 March 2012.

22.In addressing the requirements of section 83V (2) (b) of the Ordinance, it was asserted in the Notice of Motion:

“This new evidence was not available to the court at the trial due to difficulty encountered in its adducement and/or were not considered relevant to the issue that trial. However, given time and the Verdict, these items of evidence are now available and/or are of relevance.”

DISCUSSION

23.Section 83 V of the Ordinance provides:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice –

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if –

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

24.Ms Ng states in her affirmation that, although she had been asked by the solicitors representing the applicant to produce the telephone records for the mobile telephone 9387 0063 at the time of the applicant’s trial, she had not produced those records because she did not wish to get involved in a criminal case and was concerned that the telephone was registered in her name. She said that having attended a conference with the applicant’s instructing solicitors and his counsel at trial she, the applicant and their sister, Mandy, had visited Repair Station at counsel’s direction to obtain records relating to the repair of the computer. Employees of Repair Station had declined to allow her to take away the original of those records, which described the receipt and return of the laptop computer and the details provided the customer who had deposited the laptop computer for repair. They said that the receipt evidencing the retrieval of the computer had been sent to their auditors and was not available. However, they had taken a photograph of the records which had been adduced into evidence in the trial.

25.In The Queen v Tam Chung Sing[14] this Court considered the intra-relationship between sections 83 V (1) and (2) of the Ordinance. In his judgment, Silke VP said:[15]

“Subsection (2) imposes a duty upon the Court to receive further evidence, if the conditions of the subsection are met, but, of itself, does not restrict the discretionary power of the Court under subsection (1) to receive further evidence if the interests of justice require. The conditions in subsection (2) are not imported into subsection (1) but a Court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The Court will not receive inadmissible evidence nor will it receive evidence under subsection (1) if it is satisfied that it “would not afford any ground for allowing the appeal” or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process, (Lattimore [1976] 62 Cr. App. Rep. 53, Parkes [1962] 46 Cr. App. Rep. 29; Stafford and Luvaglio (No. 1) [1969] 53 Cr. App. Rep. 1.”

Those observations of Silke VP were cited with approval in the judgment of this court in HKSAR v Tang Sau Leung[16].

26.In the judgment of the Court of Final Appeal, given by Chan PJ, in Mahabobur v HKSAR the court considered the circumstances in which evidence might be admitted in the Court of Appeal pursuant to section 83 V of the Ordinance. Chan PJ said:[17]

“Under s. 83V(1)(c) of the Criminal Procedure Ordinance Cap 221, the Court of Appeal, at the hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interest of justice, receive the evidence, if tendered, of any witness. The conditions to be satisfied before receiving such evidence are provided in s. 83V(2): the fresh evidence is likely to be credible; it would have been admissible in the courts below; it is relevant to an issue in the appeal; there is a reasonable explanation for the failure to adduce it in the courts below; and the court is satisfied that it would afford a ground of appeal. See also Chan Tung Cheung v HKSAR [1998] 1 HKLRD 36; HKSAR v Cheng Sui Wa [2003] 4 HKC 571; HKSAR v Cheng Wui Yiu, CACC No. 532 of 2004.”

27.Mr McGowan, for the applicant, does not dispute the fact that the evidence now sought to be adduced before this court had been identified as relevant to the applicant’s case at the time of his trial. Some attempt had been made to secure the evidence. Indeed, as noted earlier, at trial a photocopy of what was said to be part of the records of Repair Station was adduced in evidence through the applicant as exhibit D3. As the judge noted at the time that it was adduced into evidence, “I don’t know how this proves what …. It is just a piece of paper with crosses and a telephone number.”[18]

28.No attempt was made to adduce into evidence at trial the telephone records of the telephone 9387 0063. Although, as is apparent from the affirmation of Ms Ng, it appears that counsel and solicitors at trial had identified those telephone records as relevant to the defence case and sought to obtain them, albeit unsuccessfully, from Ms Ng. In answer to a question from the court, Mr McGowan said that no allegation of flagrant incompetence was levelled at counsel who had conducted the trial or at his solicitors, who were solicitors both at trial and in the application for leave to appeal against conviction.

29.Obviously, witness summonses could have been obtained in respect of the staff of both Repair Station and the mobile telephone company, “Three.com.hk”, which provided telephone services for 9387 0063, requiring them to provide oral testimony and produce relevant documentary records. That was the means by which the evidence would have been admissible as business records. There is no dispute that no application was made for the issue of such summonses. Similarly, Ms Ng Sau Kuen could have been called by the defence to testify, in so far as the evidence was admissible, of the existence of ‘Alan’.

30.In any event, it is to be noted in respect of the telephone numbers provided to Repair Station at the time of the computer was deposited for repair, as noted in their record, that whilst one of the numbers was apparently a number of the telephone of which the applicant was in possession at the time of his arrest, the other number, 5733 8262, although bearing some similarity to the telephone number apparently dialled repeatedly by the applicant in the minutes before his arrest is different, namely 5377 8262.

31.In all the circumstances, we were not satisfied that there was a reasonable explanation for the failure to adduce at trial the evidence now sought to be adduced at the hearing of the application. Accordingly, we refused the application to adduce that fresh evidence.

GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

32.By Ground 1, it was contended that the judge had erred in inferring that the applicant had been speaking on the telephone to Tam Lok Sin and not Alan and that unlawful trafficking in dangerous drugs had occurred between the applicant and Tam Lok Sin.

Ground 2

33.Then, it was submitted that the judge had erred in accepting the evidence of PC 54753 that he had seen Tam Lok Sin hand the pink plastic bag to the applicant.

Ground 3: the judge’s approach to the evidence of the applicant

34.Finally, it was submitted that the judge had erred in her approach to the evidence of the applicant. First, it was contended that the series of rhetorical questions that the judge posed in paragraphs 53, 54 and 56 of the Reasons the Verdict demonstrated that she placed a burden on the defence, as opposed to the prosecution, to provide answers to those matters. Then, it was suggested that she had posed rhetorical questions related to the evidence of the applicant which had not been posed to him in his own testimony. Secondly, it was submitted that the judge erred in determining that the applicant was untruthful, in particular that Alan was a person made up by the applicant. Thirdly, it was said that she had erred in posing rhetorical questions as to the conduct of Tam Lok Sin, who had not been called as a witness.

GROUNDS OF APPEAL AGAINST SENTENCE

35.In his home-made grounds of appeal against sentence attached to Form XI, by which the applicant gave notice of his application for leave to appeal against sentence, the applicant asserts simply that he wishes to appeal against the sentence.

A CONSIDERATION OF THE SUBMISSIONS

The judge’s rejection of the applicant’s evidence

36.The judge rejected the applicant’s testimony that he had arrived at Wah Yu House in the taxi in order to meet Alan and that his encounter with his acquaintance Tam Lok Sin, whom she described as D1, was entirely coincidental.[19] She found that the undisputed phone calls made by the applicant as he arrived at Wah Fu Estate and thereafter were made to Tam Lok Sin:[20]

“…these phone calls were made to D1 for the purposes of meeting D1 outside Wah Yu house not Alan. They were made to collect drugs from D1 not to return the laptop to any person called Alan.”

37.Those findings resonated with the core of the prosecution case as put to the applicant in cross-examination during his testimony:

“in Q. ….On the material day, 26 March, you went to Wah Yu House by taxi because you made an appointment with “Ah Sin”, Tam Lok-sin.

A. No.

Q. You didn’t make any appointment with Alan.

A. (Witness answers in English) No.

COURT: Please answer in Chinese.

A. (Interpreted evidence continues) Disagree.

Q. The reason why you made an appointment with “Ah Sin” was that you want to get the pink plastic bag with – containing dangerous drugs from him.

A. Disagree.

Q. And you wanted to further bring the dangerous drugs to Tin Wan.

A. Disagree.

Q. When you arrived at the entrance of Wah Fu Estate, and when you were still on the taxi, you told “Ah Sin” over the phone that “I have arrived at the entrance of the estate.”

A. Disagree.”

38.In a short series of questions the prosecution had made its case clear to the applicant, namely that he was there to meet Tam Lok Sin and not Alan. It is be noted that in his evidence the applicant had not provided any detail whatsoever of the personal particulars of Alan and had said that, following his arrest, he had been unable to locate or contact Alan. As the judge noted, although the applicant remained at the scene of his arrest for some time afterwards and although, on the applicant’s testimony, he had come there so that Alan could retrieve his laptop computer, Alan did not appear nor was there any contact with him by telephone.

39.In those circumstances, the judge was entitled to pose the series of rhetorical questions that she did in respect of Alan and to conclude that he was “a fictitious person made up by the defendant ... in an attempt to give an innocent explanation of why the defendant was waiting at Wah Yu House and why he made the phone calls that he did.”[21]

40.Similarly, the judge was entitled to subject the applicant’s testimony as to his encounter with Tam Lok Sin to scrutiny. It was the evidence of the taxi driver that when he saw Tam Lok Sin approaching the stationary taxi he had concluded that he would board the taxi and, as a result, had restarted the engine of the taxi. His evidence that, after the right rear door of the taxi had been opened, the applicant had said twice to Tam Lok Sin, “Get into the car first” was not disputed. It was in the context of the applicant’s testimony that Tam Lok Sin was no more than an acquaintance, someone he knew to be a guard on the Estate, that the judge posed a series of rhetorical questions as to why it was that the applicant would have behaved in the way that he testified.[22] The questions arose from ordinary common sense: Why would the applicant invite Tam Lok Sin, a mere acquaintance, to board the taxi to have a casual chat without engaging in any preliminary pleasantries, when he was waiting in a taxi in which the meter was running for Alan to collect his computer? Again, these were matters that had been raised with the applicant in his testimony.[23]

41.Having examined the applicant’s testimony carefully in this respect the judge was entitled to reject it and to determine that the applicant:[24]

“…told D1 “get on board first” twice as PW1 said, so that the passing of the drugs to him in the plastic bag would be more discreet as the defendant knew there were police officers present. The defendant concocted his account of asking D1 to get on board the taxi for pleasantries in an attempt to explain why he had asked D1 to get on board first.”

The judge’s acceptance of the evidence of PC 54753 that he saw Tam Lok Sin hand the pink plastic bag to the applicant

42.There was no dispute that the police van on which PC 54753 was seated was parked in a manner which afforded the police officer, seated on the second row on the left-hand nearside of the vehicle, a view of the nearside of the taxi forward of his own vehicle and to his left. At issue in the trial, was the exact position of the stationary taxi. It was the evidence of the applicant that the taxi was parked some little way to the left of the entrance to Wah Yu House, as depicted in defence photograph 13. That contention was rejected by PC 54753 who testified that the taxi was parked squarely outside Wah Yu House, as depicted in prosecution photograph 2. Mr Lee, the taxi driver, confirmed that he had not been permitted by the police to move his taxi until photographs had been taken by the police.[25] The prosecution photographs depict the taxi parked immediately outside the entrance to Wah Yu House.

43.It was common ground that the applicant was seated in the left rear or nearside seat in the taxi and that the pink plastic bag, which Tam Lok Sin had been seen carrying as he emerged from Lok Yu House, had come into the taxi through the right rear or offside door of the taxi. That place was at the far side of the taxi as viewed from the place in which PC 54753 was seated in the police van.

44.As the judge noted in her Reasons for Verdict, although he was subjected to “rigorous cross-examination”, PC 54753 was unshaken in his evidence that he saw Tam Lok Sin hand the applicant the pink plastic bag through the open right rear offside door of the taxi, as he stood outside the taxi and the applicant reached out with his right hand towards Tam Lok Sin to receive the bag.[26] In cross-examination, the following interchange took place:[27]

“Q. Now, the handing of the pink packet by the male. You remember you basically said you had it in your line of vision. Remember that?

A. Correct.

Q. But other than that, you couldn’t remember or you have no recollection whether it was passed in halfway up and, likewise, you have no recollection whether it was passed in this way, slightly lower down, right?

A. I do not recall. However, I could see clearly that the pink pack was handed out.”

Earlier in that cross-examination, PC 54753 denied that Tam Lok Sin had thrown the pink bag onto the rear seat of the taxi.[28]

45.As noted earlier, the judge was alive to the parts of the evidence that were particularly relevant to a consideration of the reliability of the evidence of PC 54753 that he has seen the pink plastic bag as it was handed by Tam Lok Sin to the applicant; namely, that his view was from a higher position than that of the taxi at a distance of 8 to 10 metres, in sufficient natural light without anything blocking his view.[29] Further, the judge noted that the view depicted in defence photograph 27, which PC 54753 said was similar to his view, afforded a view from the position occupied by PC 54753 of the waist and upper body of a person standing at the rear right offside of the taxi.

46.Having noted that PC 54753 had demonstrated the fact that, in handing the plastic bag over to the applicant, Tam Lok Sin had raised the plastic bag to his chest level and then stretched out his arm to hand it to the applicant, the judge observed that PC 54753 testified that, whilst he was unable to say exactly at which part of the taxi the bag was handed over, he was sure that he was able to see it being handed over. Of that evidence, the judge determined:[30]

“I did not consider PW2’s evidence unreasonable or unreliable when he said he was unable to say exactly at which area the plastic bag was handed over. I accepted his evidence that at the time his observation centred on what the defendant was doing. It was therefore reasonable that he did not notice exactly which exact part of the taxi the bag was passed. I was satisfied that whichever part of the taxi it was handed over to the defendant, PW2 was able to see the bag pass hands.”

47.In the result, we were satisfied that the judge was entitled to determine that PC 54753 was an “honest and reliable witness”[31] and to accept his testimony that he had seen Tam Lok Sin hand the pink bag to the applicant whilst the latter was on the rear seat of the taxi.

Conclusion

48.We were satisfied that there were no merits in the applicant’s grounds of appeal against conviction. Accordingly, we dismissed the application for leave to appeal against conviction.

Sentence

49.The judge’s determination to take a starting point for sentence of 5 years’ imprisonment for unlawfully trafficking in 32.3 grammes of ketamine was entirely consistent with an application of the guidelines, to which she made reference, set out in the judgement of this Court in Hii Siew Cheng, which provide for a range of sentence of 4 to 6 years’ imprisonment for unlawfully trafficking in 10 to 50 grammes of ketamine. Similarly, the judge’s stipulation of a starting point for sentence of 2½ years’ imprisonment for unlawfully trafficking in 2.79 grammes of cocaine was consistent with the guidelines provided in the judgment of this Court in Lau Tak Ming, as applied to cocaine, namely that unlawfully trafficking in amounts of up to 10 grammes falls within the range of sentence of 2 to 5 years’ imprisonment.

50.Finally, having regard to the two separate starting points she had identified, the judge’s determination that the appropriate overall totality of sentence was 5 years and 6 months imprisonment was entirely appropriate.

Conclusion

51.For those reasons, at the hearing we dismissed the applicant’s application for leave to appeal against sentence.

(Michael Lunn)
Justice of Appeal

(Judianna Barnes)
Judge of the
Court of First Instance

(Ian McWalters)
Judge of the
Court of First Instance

Mr Franco Kuan, SPP, of the Department of Justice, for the Respondent/HKSAR

Mr James H.M. McGowan, instructed by H. L. Wong & Co., assigned by D.L.A., for the Applicant YEUNG Chi-keung

[1] Appeal Bundle page 158.

[2] Appeal Bundle pages 14 T-15 H, paragraph 11.

[3] Reasons for Verdict: page 23 S, paragraph 49.

[4] Reasons for Verdict; page 24 L-M, paragraph 51.

[5] Reasons for Verdict: page 25 D-F, paragraph 53.