THE QUEEN v. SIU KA CHEONG

IN THE COURT OF APPEAL

1987, No. 124
(Criminal)

______________

________________

J U D E M E N T

________________

Silke, V .-P.:

1. Siu Ka Cheong was convicted in the district Court before His Honour Judge Chism for the offence of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to two years’ imprisonment.

2. The Particulars of the Charge upon which he stood trial were, that on 15^th November 1986 in a corridor on the 1/F., Wing On Lau, No.208, Shang Hai Street he had in his possession a dangerous drug, namely 50.97 grammes of a mixture containing 4.55 grammes of salts of esters of morphine.

3. The evidence, and we have the full transcript in front of us, relating to the count was given by two customs officers.  They described seeing the Applicant walking hurriedly, their following him and eventually watching him when he arrived at the first floor of the building.  They said they had seen him pick up a yellow bag, take something out of it, tuck it into his trousers.  He was then apprehended having first put the yellow bag back.

4. There was evidence that the article he placed in his trousers was a packet of dangerous drugs.  There was evidence that the contents of the yellow bag were further packets of dangerous drugs.

5. The Applicant admitted possession of the packet which was in his trousers.  The total contents of that was 4.14 grammes of a mixture containing 0.35 grammes of salts of esters of morphine.

6. The trial judge had some doubt about the issue of the yellow bag, the Applicant having given evidence and he having considered the full of the evidence in the case.  He, therefore, convicted him of the possession of  the packet in his trousers which, as I have said, the Applicant admitted, and which contained an amount which raised the presumption.  He found that that presumption had not been rebutted, though at first blush his brief Reasons for Verdict might have suggested otherwise.

7. In the course of his evidence at trial, the Applicant had alleged that he had been punched in the stomach by the customs officers, or by one of them.  When it came to cross-examination there was an application by counsel then appearing for the Crown to question him on his previous convictions.  The Applicant’s legal representative at trial raised no objection.  He was cross-examined upon a very lengthy record indeed.  The Applicant, who for reasons which will become apparent is now unrepresented, takes objection to that course having been permitted.

8. An allegation of impropriety had been made against the customs officers and, in those circumstances, the judge had a discretion as to whether or not he permitted cross-examination of this nature.  He exercised his discretion in favour of so doing.  There is nothing on the record that we can see that shows that he, in any way, wrongly appreciated his position and it is not for us to substitute our discretion for his.  He was entitled to take the course he did.

9. In the course of his evidence, the Applicant had said that he was earning $6,000 to $7,000 per month as a hawker.  He put forward this evidence to show that the drugs which he admitted he had in his possession were for his own consumption.  He had paid $120 for them and it was his custom to pay that amount every two days for a packet of drugs.  A sum which he could well afford.  That evidence was rejected by the trial judge.

10. When the matter first came on for hearing on 3^rd June 1987, a differently constituted Division of this Court, which did not have the benefit of having the full transcript, thought that matters might arise for which the Court would be grateful for the assistance of counsel.  This seemed to relate particularly to the cross-examination on the previous convictions.  They therefore granted a Legal Aid Certificate.

11. Miss Kwan who appeared initially for the Applicant today has had the benefit of a perusal of the full transcript and has come to the conclusion that she cannot offer any grounds to this Court to suggest the conviction was wrong.  We were grateful for her assistance and she has asked to withdraw from the matter on that basis, the Applicant himself wishing to pursue the appeal.  He has and we have heard him.  He, as indicated, has raised the matters of the previous convictions.  He further suggests, in addition to the impropriety of such a course being permitted, that the trial judge was prejudiced by their admission which prejudice led him to disbelieve in the evidence of income.

12. The trial judge heard the evidence and saw the witnesses.  While some of us might not necessarily have come to the same conclusions as he did, it is not for us to substitute our views of the facts for his unless he can be shown to have misunderstood them or to have been wrong.  It was for him to decide the matter on the evidence before him and to come to the conclusions he did.  He was entitled to reach them

13. The application relating to sentence was abandoned on 30^th April 1987. We are, therefore, no longer concerned with it.

14. The application for leave to appeal against conviction is refused.