HKSAR v. LAU WAI PING

CACC 303/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 303 OF 2008

(ON APPEAL FROM HCCC 107/2008)

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BETWEEN

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J U D G M E N T

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

Introduction

1.  The applicant, Lau Wai-ping appeared before Mr Recorder McCoy SC and a jury on an indictment consisting of a single charge of trafficking in 144.16 grammes of a solid containing 98.14 grammes of cocaine. The applicant pleaded not guilty to the charge, but was convicted unanimously, and sentenced to 10 years’ imprisonment.

2.  The applicant seeks leave to appeal against both conviction and sentence.

The Prosecution Case

3.  On 15 January 2008 at shortly before 9 p.m. the applicant returned to Hong Kong via the Lok Ma Chau checkpoint, having left via the Lo Wu checkpoint about three hours earlier. The applicant was carrying a black shoulder bag.

4.  The applicant was intercepted and taken by four officers to a storeroom for a search. One of the officers, Wong Wai-cheong found, inside the shoulder bag that the applicant was carrying, one black plastic bag containing six re-sealable bags of cocaine, the subject matter of the charge.

5.  On being questioned, the applicant said, “Ah Sir, I don’t know what it is. I bought it in the Mainland from somebody who said it was good to eat.”

6.  The applicant was then taken to the Lok Ma Chau Report Centre where a further search was conducted, but nothing suspicious was found.

7.  Officer Wong made a post record of the event in his notebook. The applicant initialed and/or signed the post-record, and then wrote out a declaration in the notebook.

8.  At another video-recorded interview at the Narcotics Bureau, Police Headquarters, the applicant said that he had bought the packets of dangerous drug in Ho Pui Street in the Mainland for $120. The applicant said he did not know what they were, but thought that they were “sweeties”.

The Defence Case

9.  The applicant’s case was that the packets of dangerous drug were not found in the bag that he was carrying. The applicant alleged that the officers not only lied to wrong him, but had also manufactured evidence against him.

10.  It was suggested that the applicant did not make any admission and did not sign/initial the post-record in officer Wong’s notebook. It was further suggested that the video record did not capture the applicant’s voice and that the voice was that of someone else. The implication was that the police manufactured the video- recorded interview by using someone else’s voice to superimpose that of the applicant.

11.  When giving evidence, the applicant said that he had bought some ham for $120 in the Mainland because the seller said the ham was sweet. He said the cocaine was not found from his bag, but was placed on the table after he was taken to the report center, and he did not have the chance see its contents. He also said the signatures in officer Wong’s notebook containing the post-record and the declaration were not written by him. He even said that he had not seen the notebook before.

12.  The applicant repeated the suggestion that the voice captured in the video-recorded interview was not his and that the contents of the interview record did not originate from him.

13.  The applicant alleged that the police officers conspired to frame him up, by forging his signatures and by superimposing his voice during the interview. He said he did not make any complaints to his lawyers and the magistrates about it because he had been feeling dizzy and was in pain.

The Grounds of Appeal Against Conviction/Sentence

14.  The applicant, in his application, simply put down, “No knowledge. Conviction in the absence of sufficient evidence” and “Aggrieved. Appeal against excessively heavy term of sentence.”

15.  The applicant, in his oral submission to this court, says that when he was searched by the police, no drug was found, but an officer produced a black bag and asked the applicant to open it. When the applicant refused, it was suggested that he must admit. The applicant also says that he was feeling unwell during the interview and had denied knowing anything about the packets of drug.

16.  The applicant repeats the allegation that it was a frame up by the police. He emphasizes that he knew nothing about the drug and there was no fingerprint evidence linking him to the packets of drug in question. He is adamant that the police had lied against him.

17.  The case turned on the assessment, by the jury, of the credibility and reliability of the officers and the applicant.

18.  We have considered the evidence and the judge’s summing up. The evidence against the applicant was overwhelming and the judge’s summing up to the jury was fair, balanced and comprehensive.

19.  The jury was entitled to reject the evidence of the applicant, which was confused and unconvincing. On the evidence adduced by the prosecution, which the jury had clearly accepted, the applicant was guilty of the charge, and he was properly convicted.

20.  We do not find the conviction against the applicant unsafe or unsatisfactory. His application for leave to appeal against conviction is dismissed.

Sentence

21.  The applicant claimed to be aged 81, although his identity card showed that he was aged 70. Nevertheless, the judge took the view that old age was of no or little weight in drug trafficking cases. The judge was right.

22.  Trafficking in cocaine should attract a similar sentence as trafficking in heroin (See AG v Leung Pang-chiu [1986] HKLR 608).

23.  According to the tariffs laid down in R v Lau Tak-ming [1990] 2 HKLR 370, trafficking in 50 grammes to 200 grammes of heroin attracts a starting point of 8 to 12 years’ imprisonment. The same starting point should be adopted in the present case.

24.  The applicant had over 15 previous convictions, mostly drug related.

25.  Despite the applicant’s advanced age and his frailty for which we have sympathy, we cannot say that the 10 years’ sentence imposed on him for trafficking in just under 100 grammes of cocaine is manifestly excessive. Indeed the applicant’s counsel at trial conceded that 10 years’ imprisonment was an appropriate sentence.

26.  The application for leave to appeal against sentence has no merits and is also dismissed.