HKSAR v. CHU YUN KEUNG

CACC 8/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 8 OF 2006

(ON APPEAL FROM DCCC NO. 788 OF 2005)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1.  This applicant seeks leave to appeal against conviction and sentence.  He was tried in the District Court before Judge Chua in respect of three charges:

(1) trafficking in dangerous drugs on 25 May 2005;

(2) resisting a police officer in the due execution of his duty, on 10 June 2005; and

(3) possession of a dangerous drug on 10 June 2005.

2.  The evidence against him in relation to the first charge was that he was seen by police officers going towards a flowerbed near Nam Fung House in Sham Shui Po and taking a bag from that flowerbed in which were 60 wrapped packets containing a mixture which in turn contained 10.06 grammes of heroin hydrochloride.  Also found were 100 tablets with 1.47 grammes of midazolam.  Upon his arrest he said that the drugs were for his own consumption but his defence at trial was different.  He testified that he was outside a shop with a friend and was approached by police officers who took him to a staircase and asked “where the stuff” was; that he had said that he had no idea and they said that if he did not have any, they would have to give him some.  In due course, more police officers arrived and he was taken to the police station where drugs were produced as if they were his.  It was agreed that the street value of the drugs was $7,800.

3.  The evidence in relation to the second and third charges was that an officer on patrol at the Shek Kip Mei Estate on 10 June 2005 saw the applicant riding his bicycle and, being suspicious of him, the officer showed him his warrant card and told him to stop, but the applicant accelerated and when eventually the officer managed to stop the applicant there was a struggle, the applicant resisting the attempt to arrest him.  When he was searched, a red plastic packet was found from his trousers containing the dangerous drugs which are the subject of the third charge.  The applicant's case at trial was that the officer had not revealed his identity, that when he fell off his bicycle he was assaulted and kicked and that in any event he did not have any drugs on him. 

4.  In her Reasons for Verdict the judge said, as to the first charge, that after observing the witnesses she was in no doubt but that the officer had observed the applicant walking along to the flowerbed and that drugs were, as they had said, found in his pockets thereafter.  She then said: “I am sure the defendant was dealing in the drugs when he picked up the bag from the flowerbed.  He is convicted of the charge.” 

5.  As to the second and third charges, the judge said that she unhesitatingly accepted the evidence of the officer and rejected that of the applicant and accordingly convicted him.

6.  In his grounds of appeal against conviction, the applicant has set out in some detail the testimony adduced on behalf of the prosecution.  In relation to the first charge, he has put forward a suggestion that he was framed by the police because on the day prior to the incident in question he had encouraged people to run away from a raid on a gambling den.  We have read his grounds of appeal and we are satisfied that there is nothing in them and, accordingly, the application for leave to appeal against conviction in relation to each charge is dismissed.

7.  In relation to sentence, the judge sentenced the applicant to a term of five years' imprisonment in relation to the first offence, to three months' imprisonment in relation to the second of which she ordered seven days to run consecutively to the sentence imposed on the first charge, the rest to run concurrently; and to 15 months' imprisonment in relation to the third offence but she ordered only two months of that to run consecutively to the other sentences, making a total of five years, two months and seven days' imprisonment.

8.  The applicant was aged 47 years at the date of these offences and has a criminal record which includes offences for possession of dangerous drugs as well as for robbery.  He says in his grounds of appeal against sentence that the sentences are too heavy particularly because this is the first time that he was involved in the dangerous drugs heroin, and he raises the fact also that he has an aged and ill father.

9.  The sentences imposed were neither manifestly excessive nor wrong in principle.  Indeed, he might consider himself fortunate that only two months of the sentence in relation to the third charge were ordered to run consecutively, given that it was an offence committed whilst on bail.  The application for leave to appeal against sentence is dismissed.