HKSAR v. POON SIK HOI

CACC 300/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 300 OF 1999

(ON APPEAL FROM HCCC 368 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 3 May 1999, the Applicant pleaded guilty in the Court of First Instance to a charge of trafficking in a mixture containing 265.22 grammes of heroin hydrochloride. The offence took place on 15 May 1998. There was, however, a further count on the indictment which alleged a conspiracy with Cheng Fuk-wah to traffic in heroin hydrochloride between 20 July 1997 and 19 August 1997. Following a trial before Beeson J and a jury, the Applicant was convicted on this count. He received a sentence of 18 years' imprisonment for the conspiracy and a concurrent term of eight years' imprisonment for trafficking. The Applicant now seeks leave to appeal against his conviction and sentence on the conspiracy count.

Prosecution's case

2. In brief, the Applicant was arrested on 15 May 1998 as he came through the checkpoint at Lo Wu. When he was searched, the heroin in the trafficking count was found on him in his trouser pocket. The value of that consignment was in excess of $230,000.

3. The conspiracy, which related to events approximately a year earlier, involved the allegation that this Applicant was a courier working with Cheng Fuk-wah ("Cheng"). On 19 August 1997, Cheng had been arrested after heroin was found in his possession. Cheng was taken to his home address in Tuen Mun where a mixture containing 1.7 kgs of heroin was found together with substances used to dilute heroin, as well as scales and other equipment which is used in the making of blocks of heroin.

4. The case against the Applicant, who did not give evidence at his trial, was largely based upon the testimony of Cheng who alleged that the Applicant was responsible for bringing heroin into Hong Kong. Cheng gave evidence under immunity, having pleaded guilty to trafficking in heroin for which he had received a sentence of 15 years' imprisonment. His evidence was supported to some extent by the evidence of surveillance officers and the Applicant's immigration records.

Grounds of appeal

5. The Applicant, in his notice of appeal, stated simply that the judge had misled the jury and that he wished also to lodge an appeal against sentence. In court today, he has added nothing to his written application. However, whilst the Applicant is not represented, there was a stage when counsel did settle appeal grounds. These are in the appeal bundle. They criticise the ruling of the trial judge to allow the introduction of identification evidence on the basis of which a number of surveillance officers were allowed to identify the Applicant as the man who they had been watching during the events covered by the conspiracy. The judge's ruling that there was no need in such circumstances for a prior identification parade to have taken place was criticized because this enabled the officers to identify the Applicant in court as the person they recognised from their ongoing surveillance duties. It was also suggested in counsel's grounds of appeal that the direction to the jury that the surveillance evidence could provide support for the evidence of Cheng was in error.

6. The evidence of the surveillance officers' ability to identify the Applicant was admitted after the judge had heard lengthy submissions from defence counsel. We do not think the judge's decision to refer to the surveillance officers' evidence as relating to "recognition" was in error. The strength of their evidence, as the judge stated, was "a matter of weight for the jury". The Applicant, who we can see in court today, is an easily recognised figure. The surveillance officers had watched him in good conditions and on a number of occasions.

7. Whether the jury believed the surveillance officers was a matter for them to decide. It is plain from a thorough reading of the judge's summing up that she dealt with all matters of law and fact in a manner that was scrupulously fair to the Applicant. The application in relation to conviction is dismissed.

8. We have not found it necessary to deal with any of the facts of this case in detail. It revealed, however, a very serious case of trafficking by importation to Hong Kong of heroin by this Applicant. He might well have expected to receive a sentence of 20 years or more. The judge took a starting point of 20 years and having regard to the mitigation relating to the Applicant's age and his health, she appears to have been moved to sentence the Applicant only to 18 years. There is no merit whatever in the application relating to sentence and it also is dismissed.