HKSAR v. WONG MAN TAT

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 635
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. The applicant was convicted after a trial before Deputy Judge McMahon and a jury of the offence of trafficking in a dangerous drug. The indictment alleged the applicant on 16th November 1996 at Lung Cheung Road outside Chak On Estate unlawfully trafficked in a dangerous drug, namely 138.47 grammes of a mixture containing 105.40 grammes of heroin hydrochloride.

2. The applicant's written grounds of appeal are these:

"1. It is unsafe and improper to convict the applicant of the drug trafficking charge as the prosecution failed to prove their case beyond reasonable doubt.

2. In the summing up the trial judge made improper or unfair inferences as well as some biased or wrong arguments. Hence the judge was wrong legally by failing to give right and proper guidance to the jury as to the evidence adduced in the court."

3. The prosecution case is this. Two police officers (PW1 and 2) were on duty on a hillside at Lung Cheung Road near Chak On Estate. They observed a white vehicle pull up at a passing place on the opposite side of the road. They kept this vehicle under observation for ten minutes during which they saw two persons in the vehicles smoking and chatting. They then approached this vehicle. At about the same time their officer in charge together with other police officers in an unmarked police van also approached this vehicle. They saw the two persons in the white vehicle run out from the vehicle. PW1 intercepted the applicant while the other person was intercepted by officers from the van. PW1 searched the applicant and a black plastic bag was found at the back of the applicant near his waist. Inside this black plastic bag was a manila envelope containing eight small bags of white substance which when subsequently analyzed was found to be the dangerous drugs the subject matter of the present offence. After he seized the black plastic bag and its contents, PW1 took the applicant back to the white vehicle to witness other officers search the vehicle. The search took about an hour but nothing was found. PW1 then arrested the applicant. PW2 was together with PW1 and he witnessed the applicant was searched and PW1 find the dangerous drugs on the applicant's person.

4. An inspector WONG from the Narcotics Bureau was called by the prosecution. The gist of his evidence is that he was responsible for conducting surveys of retail value and purity of drugs in the street market. According to his research, the average price of heroine on the street at the time in question was $390.65 per gramme and the average purity was 44.97%. He calculated on that basis, the quantity of 105.40 grammes of heroin hydrochloride in the present case would produce a quantity of 234.37 grammes of mixture with purity of 44.97% and that could fetch in the street market $91,566.64. The prosecution case is that the only reasonable inference from the quantity and value of the dangerous drugs is that the applicant's possession of them was for trafficking.

5. The applicant did not give evidence. His defence as put in cross examination of the prosecution witnesses was he never had the drugs on him. It was suggested by counsel representing him at the trial that while the vehicle was being searched, a police officer from the van went to the hillside and he returned with the plastic bag of dangerous drugs. The officer then confronted the applicant with it when the applicant was in the police van. That was why the search took as long as an hour. It was further suggested that the white vehicle pull up at the passing place because it had been involved in an accident. But no evidence had been adduced to that effect.

6. In his submission on the 1st ground today, the applicant claimed a different version of how he was arrested at the passing place. He claimed that the dangerous drugs were taken from the hillside by police officers and were planted on him at the scene. He also claimed the wrappings of the packet were different from those produced before the court and that neither he nor the other person in the vehicle had admitted the dangerous drugs belonged to him. He further claimed there was no evidence of fingerprint or fabricated evidence. As it may be seen from the judge's summing up, these matters had been canvassed length in the cross examination of the prosecution witnesses. There was nothing in the evidence that could substantiate these allegations.

7. In his careful summing up, the judge directed the jury as to the elements of the offence of trafficking in a dangerous drug and the burden of proof. He reminded the jury that the case of the prosecution was that the applicant was in possession of the drugs for the purpose of trafficking and the prosecution relied on the evidence of PW1 and 2 to establish possession and the evidence of Inspector WONG to establish that the applicant's possession was for trafficking and there was no other evidence of trafficking. He also directed the jury on the defence as put in cross examination and the lack of evidence in support of it.

8. On the issue of possession, the trial judge told the jury:

"If you accept the evidence of PW1 and 2 as to where the drugs were found, you might have little difficulty in deciding that the defendant did intend to possess those drugs and did have control over them. This is a matter for you."

9. Prior to that the judge reminded the jury of the contradictions disclosed in the evidence of the two witnesses and to take these into account when assessing their credibility. The jury was told about the statutory presumption as to knowledge. The judge directed them that this presumption could be rebutted by evidence on balance of probabilities and it was for them to decide whether the presumption had been rebutted.

10. On the evidence of trafficking, the judge directed the jury in these terms:

"And that leads me on to the next direction I want to give you because the prosecution say they have proved that the defendant had these drugs for the purposes of trafficking because of the quantity and value of the drugs. They say the defendants with $90,000 odd dollars worth of drugs in his possession that is the street value, would not have that amount of drugs in his possession for any reason other than trafficking. Now this is an inference the prosecution ask you to draw. As I have already indicated to you, you can only draw an inference of this sort which is an unfavourable influence to the defendant, if firstly, you are sure that the value of the drugs and the quantity of the drugs. Firstly you must be sure of the fact the inference is based upon. The second thing you must be sure of and that is you must be sure in the sense that the prosecution had proven this to your satisfaction beyond reasonable doubt, you must be sure it is the only reasonable inference that can be drawn."

11. The jury was finally told that if they were sure that the applicant was in possession but not sure that it was for trafficking, it was open to them to convict the applicant on the alternative offence of simple possession.

12. Thus the jury was left in no doubt as to what the prosecution had to prove beyond reasonable doubt and that they must be sure that the prosecution had done so before they could convict the applicant of trafficking in dangerous drugs. No doubt, the jury were also aware of what defence the applicant could have. In convicting the applicant as charged, the jury must have been satisfied beyond reasonable doubt that each and every elements of the charge had been proved and they must have rejected what was suggested in the defence. There was ample evidence before the jury for them to reach that conclusion.

13. The applicant had not been able to show what improper or unfair directions the judge have given to the jury except that he had, as mentioned before complained that the judge had not directed the jury on the lack of fingerprint and fabricated evidence. But we are satisfied that this is not required in the circumstances of this case. We are satisfied that there is nothing improper in the summing up of the judge. The summing up was fair and proper and no criticism can be made of it. The application for leave to appeal against conviction is therefore refused.