HKSAR v. FUNG LEUNG KIT

CACC 110/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 110 OF 2012

(ON APPEAL FROM DCCC 1249 & 1253/2011)

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DECISION

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1.  The applicant faced a charge in the District Court of trafficking in dangerous drugs. The allegation was that on 14 July 2011 inside the men’s toilet at the fourth floor of Landmark North in Sheung Shui, he unlawfully trafficked in a quantity of ketamine. He pleaded not guilty and was convicted on 20 February 2012 by Deputy District Judge Chainrai and he was sentenced to four years six months’ imprisonment. There is no application in relation to sentence but he now seeks leave to appeal conviction.

2.  The judge heard evidence from an undercover police officer and, putting the matter broadly, it was alleged that the applicant, in the company of another, D1, went to the toilet where the applicant was introduced to the undercover officer as “my partner Cha Chai”; that the undercover officer handed marked banknotes to the applicant to count and that in the presence and view of the applicant, D1 took out a cigarette box and gave it to the undercover officer to check its contents and that those contents included or constituted ketamine.

3.  The officer gave evidence that both this applicant and D1were facing him when he checked the contents.  The two defendants left the toilet and the undercover officer followed them out.  Much of this evidence was not challenged at trial, save that it was put to the officer that the applicant was referred to as D1’s friend, not his partner. And also that the applicant was not watching the transaction between the officer and D1 but turned to wash his hands when that was going on.

4.  The applicant elected to give evidence and he also called D1 to testify in his defence; D1 having previously pleaded guilty to the charge and to the three other charges.

5.  The applicant claimed that he had arranged to meet D1 earlier that day at a restaurant in order to borrow some money and that D1 said he could lend him, not the amount that the applicant wanted, but only HK$1,700 and that it was for that purpose that the applicant was invited to follow D1 and they ended up going into this toilet on the fourth floor.  The applicant said that he received the money as a loan and had no knowledge of any intended or actual transaction in relation to drugs.

6.  The trial Judge found the police officer to be a credible witness and she provided a series of reasons why she did not believe the evidence of the applicant or of his witness.  Insofar as there was a conflict in the evidence, the Judge gave reasons why she resolved the conflict in favour of the prosecution.

7.  Amongst the matters she relied on was the fact that the phone call from D1 to the undercover officer to arrange for delivery of drugs was established to have taken place after the time at which both the applicant and his witness said that they met to arrange the loan.

8.  Secondly there was evidence that D1 had regularly used the applicant’s motor vehicle, a fact which undermined the contention of a relatively casual relationship; and the story that the applicant gave in court that he knew nothing about D1’s use of the vehicle was not believed. 

9.  The Judge also found it odd that for the mere purpose of obtaining a loan, the applicant thought it necessary to follow D1 into the toilet.  She further believed the policeman when the policeman said that D1 has called the applicant his partner.

10.  In addition to all that, she found that the evidence of the applicant that he had faced away and gone to wash his hands during the drug transaction was contrived evidence.

11.  Putting all those factors together, the Judge rejected the evidence of the defendant and his witness and came to the conclusion that the applicant was a party to the drug transaction. 

12.  I have dismissed the application, the applicant asked me to provide reasons for my decision to refuse leave.  That is a fair enough request and this is why I am delivering these reasons.

13.  The fact of the matter is that this is not a court of re‑trial.  I did not have the advantage of seeing and hearing the witnesses.  The role of the judge on appeal is to ascertain whether there is demonstrated an error in law or a clear error in the analysis of the facts by the trial Judge.  In order to investigate the applicant’s allegation that all he said in evidence was that he had met D1 between 4 and 5 pm rather than at 4 pm, I called for the transcript and that transcript supports what the Judge said, not what the applicant says.  But that is not the conclusive matter in my reasoning because I recognise that time estimates are merely that; they are estimates.  But I have examined the evidence and the Judge’s reasoning as a whole and given that this is not a court of re‑trial, and given that my function is to see whether there is any obvious error made by the Judge in law or whether she has drawn inferences which are not open to her, I can discern no error.

14.  That is the reason that I have dismissed this application for leave to appeal against conviction.  I have explained to the applicant that he has the right to renew the application to the full court, and that if he wishes to do so, he must file his renewal application within 14 days of today.

15.  I have warned him that if he does renew the application and if the full court hearing his application takes the view that there is no merit in it, it has the power to order loss of time.