R. v. SHEK CHUNG

IN THE COURT OF APPEAL

1994, No.580
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced two counts of trafficking in dangerous drugs. He pleaded not guilty to both counts, was tried before Deputy Judge Jones and a jury and was found guilty on the second count. He was acquitted on the first count.

2. The facts were somewhat unusual. It was the prosecution evidence as regards the first count that he had the drugs detailed in the count with him in the corridor outside room 522 when he was arrested. It was the prosecution evidence as regards the second count that the drugs particularized in that count were found inside Room 522.

3. It was the applicant's evidence that all of the drugs were in the room, that he had none with him at the time of arrest and it was his defence to the charge of trafficking that they were all for his own consumption. It seems clear from the summing-up that not only were drugs found in Room 522 but also that equipment, scales and other things, were found in that flat. The applicant said that he had not made use of those articles and they had been given to him by Wong Chi the supplier from whom he purchased the drugs.

4. There was an attack upon the inconsistencies in the police evidence and it seems that the jury must have been impressed by this as they were not prepared to act upon the evidence which would have established the first charge. They were, however, clearly satisfied as to guilt on the second count from the applicant's admission that he kept the drugs in the room, from the quantity which they found to be involved, from the finding of the equipment and from the admitted facts. These indicated that the retail value of the drugs seized was $162,000 and that the average consumption of a heroin addict was between .25 and .7 of a gramme of pure heroin daily. The amount seized was therefore very greatly in excess of what an addict would normally need for personal consumption.

5. The grounds which the applicant has urged before us today are firstly that he was wrongly required to face two charges. There was no irregularity in the way in which the indictment was laid. He urges further that the trial judge failed to deal adequately, particularly with the second count. This is not so. The judge correctly defined trafficking for the jury and, as to the second count, he told the jury that they had to decide if a necessary conclusion from what they found proved and from the admitted facts was that the applicant possessed the drugs with the intention of trafficking in them. He told them that if they could not reach that conclusion beyond reasonable doubt then they must find him not guilty of that charge.

6. The applicant in his written grounds suggests that the verdicts were inconsistent. This is simply dealt with by saying that they were not. He points to conflicts between the evidence given by the two police officers and it is true that there were such conflicts. But this assists him not on this appeal as the jury were aware of these conflicts and refused to convict on the count in which the police evidence was material. He points to other factual matters but these were essentially matters for the jury and are not matters which can be raised and relied upon before this court. He has neither in his written grounds nor in his address to us today raised anything which occasions this court any concern that the verdict was either unsafe or unsatisfactory and the application for leave to appeal against conviction must therefore be refused.