THE QUEEN v. WONG HON MING

1986 No. 529
(Criminal)

IN THE COURT OF APPEAL

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JUDGMENT

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Power, J.

1. The applicant in this matter faced three charges:-

1. Possession of a dangerous drug for the purpose of unlawful trafficking.

2. Possession of apparatus fit and intended for injection of a dangerous drug and

3. Possession of part 1 poisons.

2. He pleaded not guilty to each charge and after trial in Kowloon District Court was found guilty by Judge Sanders on 30th September 1986.

3. The grounds upon which he now appeals against conviction to this Court are that the trial judge believed the evidence of the police officers and, as he said, “did not listen to my words”. In fact the applicant gave no evidence at his trial.

4. He also seeks leave to appeal against sentence on the ground that it was excessive.

5. The facts were that, on the 1st January 1986, a police party, having gained entry to a flat containing two bedrooms, after search discovered 60.3 grammes of a mixture containing salts of esters of morphine, 490 milligrammes of dipipanone hydrochloride, 55 milligrammes of methadone hydrochloride and one capsule containing 0.1 gramme of quinalbarbitone soldium. These drugs were the subject to the first charge. They also found 2 sets of syringes which were the subject of the 2nd charge, and 6 tablets containing haloperidol which were the subject to the 3rd charge.

6. They also round in the room in which all of the above articles were found a China re-entry permit and a bank book, both of which bore the applicant's name. Fingerprints lifted from a packet of dangerous drugs found in the bedroom were also identified as those of the applicant.

7. The trial judge having been satisfied that there was a case to answer, the applicant elected to give no evidence and call no witnesses. The trial judge stated in his Reasons for Verdict that it was not disputed that in Room B, locked in a compartment in a wardrobe, the articles which I have just detailed were found and that one of the 8 bags of drugs had the defendant’s fingerprints on it. He pointed out that the bank book showed transactions on the 6th, the 16th and the 20th December 1985, the last of which being only 12 days before the raid on the premises.

8. Having found these facts he was satisfied that the only reasonable inference which could be drawn from the evidence, was that on 1st January the applicant had custody of all the items in the compartment and therefore was in possession of them within the meaning of section 2 of the Dangerous Drugs Ordinance, and that the applicant had not rebutted the presumptions which arose against him as to trafficking. He therefore found the applicant guilty of all charges.

9. Before us the applicant said that he gave no evidence at his trial because of the advice given to him by his assigned lawyer. He said that this lawyer, after conviction, advised him to appeal but that he has now been refused legal aid in the appeal. He has today made a statement to this court in which he has, in effect, asked us to consider the evidence which he would have given had he not chosen to remain silent at his trial. In his statement he put forward an explanation, consistent with innocence, as to the documents and fingerprints. We cannot, on this appeal, properly consider the matters he has raised. He was represented at the trial, he made his election upon advice and he is bound thereby. Nothing which this court can properly consider has been raised by the applicant which would suggest that the finding of the trial judge was not fully justified upon the evidence which was before him. Leave to appeal against conviction is refused.

10. The applicant was sentenced, in all, to imprisonment for 4 years. He is a drug addict and he has 27 previous convictions, among which there are 9 convictions for robbery. Having considered the guidelines laid down by the Court of Appeal in Chan Chi-ming[1], we are satisfied that the overall term of four years imprisonment was a perfectly proper one. The application for leave to appeal against sentence is also refused.