HKSAR v. LAU CHUN PONG

CACC 20/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 20 OF 2006

(ON APPEAL FROM HCCC NO. 210 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 22 December 2005, the applicant was convicted by a jury of trafficking in a crystalline solid containing 14.54 grammes of methamphetamine hydrochloride ('ice') following a trial before Mr Recorder L Lok, SC.  Leave is now sought to appeal against conviction.

2.  The facts were straightforward.  At 1.39 am, on 23 May 2005, three police officers were patrolling in Fuk Wa Street, Shamshuipo.  Police Constable 2978 (PW1) walked down the middle of the road in plain clothes and was ahead of the other two.  To his left were deserted stalls lining the edge of the road next to the pavement where Police Constable 48738 (PW2) and Sergeant 48440 (PW3), both in uniform, were walking.  The prosecution's case was that PW1 saw the applicant coming towards him on the left-hand pavement and then turning to his left between two of the stalls.  At that stage, PW1 noticed the applicant lowering his arm and dropping something to the ground before continuing on his way.  PW1 then gestured to the other officers to intercept the applicant.

3.  The object on the ground was retrieved by PW1.  This consisted of a piece of white tissue paper wrapped around a resealable plastic bag which contained another similar bag.  Inside the inner bag, was a substance which PW1 suspected was 'ice'.  He joined PW2 and PW3 and said that the item he had picked up had been “unloaded” by the applicant.  PW2 and PW3, for their part, had not been able to see the applicant drop the bag containing the 'ice'.

4.  The applicant's response, on arrest, was: “Ah Sir, the stuff is not mine.”  He was later found to have $7,181 in his possession.

5.  Analysis of the suspected dangerous drugs duly confirmed that the substance was 'ice'.  Its street value was about $5,089.

6.  The applicant did not give evidence at trial but his case was presented on the basis of a 'frame-up' by the police.  Plainly, the main issue for the jury's consideration, as the learned recorder rightly reminded them, was the credibility of the police witnesses.

7.  The applicant submitted homemade grounds of appeal in written form to which he has added a number of matters today in court.  These, in essence, amounted to a variety of complaints about the quality of the evidence and contained a suggestion that the summing up had unfairly favoured the prosecution.

8.  The evidential matters touched upon by the applicant, included the fact that his fingerprints were not found anywhere on the packaging for the drugs; that the dim lighting in the area where he was arrested would have rendered it difficult to say with confidence that he was the person who deposited the dangerous drugs on the ground; and that the area was in any event a notorious one for people with dangerous drugs.  He stated also that there was no evidence to show knowledge on his part of the contents of the package he had allegedly dropped and he complained that he was not able to find out where this package had been found until he read the committal documents served on him in the magistracy.  None of these matters, in our view, provided any ground for appeal as most, if not all, were canvassed at trial.

9.  The applicant's complaint that the summing up did not adequately cover the defence is misconceived.  All of the evidence was derived from evidence called by the prosecution but the way the defence had been presented to the jury was most adequately covered.  The applicant also suggested that the recorder had given an example, during the summing up, which was not appropriate for the purpose of illustrating how inferences might properly be drawn.  We disagree.  There was nothing of substance in this ground.

10.  Ms Sin, on the respondent's behalf, has most responsibly brought to our attention a number of other matters of which she submitted the court ought to be aware.  Amongst these, she pointed out that, in the absence of direct evidence of trafficking, the jury had not been left with the option of returning an alternative verdict of simple possession of the 'ice'.  It is this concern which we consider we need to address.

11.  At trial, the question as to whether the summing up ought to include a direction leaving the alternative verdict open to the jury was the subject of discussion between Bar and Bench.  This arose from the perfectly proper comments made by defence counsel in his closing speech to the effect that if the defendant was found by the jury to be in possession of the drugs for his own consumption, then this would not be sufficient to establish trafficking.  These remarks had been prompted by prosecuting counsel's comment in her final address, when dealing with the inference to be drawn that the applicant was trafficking, that there had been no evidence adduced that the drug was for the applicant's own consumption.

12.  When, in the jury's absence, the recorder enquired whether counsel desired the lesser alternative to be left to the jury, defence counsel indicated that he was not asking for this.  The prosecutor, having been given time in which to consider the position, adopted a more cautious approach and suggested that simple possession ought to be left.  Defence counsel then reaffirmed his position, effectively inviting the judge to leave the matter as a case of trafficking only.

13.  The recorder agreed to this course, ruling that the whole case had been presented on the basis of trafficking and that to leave simple possession would cause “undue prejudice” to the defence.

14.  We are in no doubt that the recorder's decision was correct.  The evidence had revealed nothing from which it could be inferred the 'ice' was for personal use.  Such a consideration would have been purely speculative although if the position had been that the jury had heard evidence that the applicant was a consumer of 'ice', it hardly needs to be said that the alternative should have been left.

15.  So far as trafficking was concerned, there was ample evidence from which an inference could properly be drawn that the applicant had been engaged in this activity having been seen in the early hours of the morning carrying a package containing 'ice' worth about $5,000 which he had disowned from the moment he was first spotted by the police.

16.  Leave is refused and the application is dismissed.