HKSAR v. LEUNG TAT MING

CACC 16/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 16 OF 2012

(ON APPEAL FROM DCCC 914 OF 2011)

------------------------

------------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------------

Hon Line J (giving the reasons for judgment of the court):

1. This was a renewed application for leave to appeal against a conviction for trafficking in a dangerous drug contrary to section 4(1)(a) of the Dangerous Drugs Ordinance Cap 134 in the District Court on 20 December 2011 before Deputy District Judge Woodcock (“as she then was”). We dismissed the application and said we would give our reasons later. This we now do.

2. The prosecution's case was that a police officer observed the applicant outside a Jockey Club Polyclinic in Yau Ma Tei; that he believed him to have been involved in a drug transaction; that he accordingly intercepted the applicant who sought to get away but was subdued after a struggle; that in the applicant's shirt pocket there were 26 pellets of heroin weighing 5.51 g, some of the pellets being wrapped in red plastic and some in white; that on arrest and caution the applicant admitted selling white powder to earn money because he had none, not even having money for meals; that this admission was reduced to writing and signed by the applicant and that he made further admissions or trafficking in an interview that followed which was recorded in writing and again signed by the applicant; that two days later whilst in custody he excreted three pellets of heroin weighing 0.78 gms, two in red and one in white plastic wrapping all identical to those found on his person at the time of his arrest; and that the applicant on arrest admitted purchasing over 20 pellets of white powder and that some of them had been accidentally swallowed when he was arrested.

3. The admissibility of the admissions was unsuccessfully challenged.  The applicant gave evidence on both the special and general issue.  He was not believed.

4. The applicant's case was that he was a drug addict who had shortly before his arrest purchased three pellets of heroin which he had placed in his mouth; that he was suddenly assaulted from behind and pinned to the ground by a police officer; that he fainted as he was nearly suffocated and that he then swallowed the three pellets; that he regained consciousness in a police vehicle where he was assaulted severely on the head and chest and threatened; that his rights were not explained to him and he did not sign, as alleged, a document setting them out; that the first record of interview was a fabrication and that he provided no answers because he could not speak because his throat had been injured through strangulation by the arresting officer; that in the post record following the  finding of the three pellets he had been suffering from drug withdrawal symptoms and the record was not accurate as he had not said what was set out in it.  He produced a medical report.

5. The judge found that the applicant had lied consistently throughout his evidence in court.  She said it was clear to her that on occasion he was making it up as he went along, demonstrably being driven, when caught out in one lie, to make up another.  The applicant was represented at trial and the judge noted that matters of real import were not put to prosecution witnesses.  Between paragraphs 28 and 34 inclusive of her reasons for verdict, the judge set out cogent reasons why she disbelieved the evidence of the applicant on both the special and general issues.  There is no need for us to repeat those reasons.  They arose from matters of fact.  They resulted in findings that she was entitled to make.

6. Concerning the medical evidence, the judge found that no physical injuries supported the applicant’s evidence, in particular that there was no injury to his throat when injury was to be expected if he had told the truth.  The abrasions that were noted were entirely consistent with the struggle at arrest.

7. Of course, given the applicant's denial in his evidence of possession of the 26 pellets, the fact that the pellets in his excrement matched their packaging was telling.

8. In the applicant's notice of application, form XI, he firstly complained that:

"when I testified in my own defence in court, the prosecutor had repeatedly gestured to refuse or stop me from giving my replies.  As a result I was deprived of a fair and just trial".

9. It is clear from the reasons for verdict that the judge well understood the applicant's case.  His evidence dealt with all the areas it was necessary to cover.  He had the protection of his own counsel. We discern nothing in this ground and would add that we have been able to listen to the court recording which revealed nothing untoward and to the contrary revealed the applicant enjoying ample scope to deal with the questions asked of him. He was in the witness box for a considerable time and the suggestion that he was somehow prevented from advancing his case is groundless.  The applicant added nothing in this regard in the oral submissions he made to us.

10. The second matter of complaint was to the effect that the judge found that the applicant had signed a relevant notice to detainees and an acknowledgment when there was no expert handwriting evidence.

11. There was no need for expert evidence.  The judge was entitled to rely on the evidence of the police officers.  She was also entitled to rely on her own view of the similarity between signatures which were not in issue and the ones which were.

12. The applicant set out further grounds of complaint in a document sent to the court dated 16 May 2012.

13. He complained that no DNA test was carried out on the 26 pellets; that rainy weather at the time may have caused a mistake in the observation of the arresting officer as to what occurred before his arrest; that the prosecutor made no final submission; that there were omissions from the notebooks of two police officers and he repeated his complaint about the absence of expert handwriting evidence.

14. In a further document dated 12 June 2012 the applicant referred to a weather report from the observatory; the fact that he made a complaint to the Complaints Against Police Office to the fact that the prosecutor did not make a halfway submission to persuade the court that there was a prima facie case.

15. Finally a document dated 2 August 2012 seems to complain that the evidence of the arresting officer that the 26 pellets were recovered from the applicant's shirt pocket was inconsistent with the location of the offence in the charge said to be outside the Polyclinic at number 145 Battery Street Yau Ma Tei.

16. None of these complaints or matters indicated to us that the conviction was other than safe and satisfactory.  The omissions from the notebooks were explicable and peripheral to the main issues and we have no doubt that the judge was aware of them, even though their impact was limited. There was no call for DNA evidence.

17. Accordingly, we dismissed the application for leave to appeal  the conviction.