HKSAR v. CHAN KWOK WAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.83
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of trafficking in a dangerous drug. The count read that he, on 6th August 1997, at the lift lobby on the ground floor of Block 40, Sau Mau Ping Estate, unlawfully trafficked in dangerous drugs, namely 34.34 grammes of a mixture containing 9.94 grammes of heroin hydrochloride and 51 tablets containing 1 gramme of midazolam maleate. He pleaded not guilty to that charge and was found guilty after trial before Deputy Judge Wright in the District Court and sentenced to imprisonment for 4 1/2 years. He now seeks leave to appeal against that conviction.

2. The facts were relatively simple. He was stopped and searched by a police party and the dangerous drugs, the subject of the charge, were found. The facts as set out by the trial judge were as follows. One of the police officers stated to the applicant that he wished to search him. He started with the bag he was carrying. Inside that he found another plastic bag which contained a variety of small packets containing white powder, strips of blue tablets and another loose tablet. The officer then asked the applicant what the items were, to which he replied, "white powder". He was then arrested and cautioned and, in response to the caution, he said, "Ah Sir, I carry it for someone just because I'm out of a job."

3. When the applicant gave evidence, he said that he purchased three packets of drugs from an unknown male shortly before he was intercepted. He was intercepted by three policemen and dragged to a nearby refuse trolley. One of the officers rummaged about in it and drew out a red plastic bag and indicated that the items in the bag belonged to the applicant. The applicant then queried the officer as to whether or not they were intent upon framing him.

4. Those were the diametrically opposed sets of evidence which the trial judge had to consider.

5. In what was a very fair way, the judge excluded a cautioned statement. However, having thoroughly examined the evidence, he rejected that of the applicant and accepted that of the police officers.

6. The applicant in his grounds of appeal states firstly that the court drew an inference without carefully considering all of the evidence in the case. This is simply not so. The court gave the most careful consideration to the evidence and, indeed, in what could be described as an excess of caution, refused to admit the cautioned statement. There is nothing in this ground.

7. In his second ground, he submits that his criminal record was read prior to the start of the trial and that this occasioned prejudice. Because of that allegation this matter was adjourned at the first hearing to obtain the full transcript. Having obtained that transcript, we now see what actually transpired. When the applicant came to give evidence, his counsel said:

"Q. Mr. Chan, at the moment we're dealing with the admissions that the police say that you made to them.

A. Yes.

Q. Firstly, I believe - and you say it quite openly - that you have been drug dependent for some time.

A. Yes.

Q. You were first convicted of possession of DD on 24 March 1993.

A. Yes.

Q. Again on 3 December 93, there was a breach with a probation officer because you were again using drugs.

A. Yes.

Q. 21 February 94, another charge of possession of DD.

A. Yes.

Q. 19 December 94, 11 march 96 and 18 March 96, again, all convictions for possession of DD.

A. Yes."

8. It is perfectly clear that the defence that was being run by counsel for the applicant involved revealing to the court the previous convictions which the applicant had in relation to dangerous drugs. It, indeed, had been put to the police by his counsel that they were aware that he had previous convictions and were dealing, at the time of arrest, with a man who was vulnerable in this way. That being so, no complaint can properly be made of the fact that the court came to know, during the course of the trial, that the applicant had a criminal record which involved offences of that type.

9. In the circumstances such a complaint cannot avail the applicant in any way.

10. The applicant goes on, however, to say that, whoever revealed the record, the end result was prejudice against him on the part of the judge. Of course if a record is revealed for whatever reason, and this results in prejudice producing a biased verdict that would be a matter of proper complaint. However, there is no foundation for such an allegation in the present case. The judge clearly gave the most careful and fair consideration to the evidence before him and convicted upon the basis of that evidence. He was not, we are satisfied, in any way influenced by the previous record of the applicant. There is no merit in this application and it is, therefore, dismissed.