HKSAR v. MA CHUN FAT

IN THE COURT OF APPEAL

1997, No. 143
(Criminal)

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J U D G M E N T

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

1. On 3 March 1997 the applicant was convicted of two offences of trafficking in dangerous drugs and one of assaulting a police officer in the course of his duty by Deputy Judge Yung in the District Court. He now applies for leave to appeal against those convictions.

The facts

2. On 9 August 1995 the applicant was in his car in Aberdeen. He had been disqualified from driving. So he was the passenger in the front seat and the car was being driven by a friend.

3. He had on him a packet containing a mixture of 27 grammes containing 4 grammes of heroin, the subject of count 1.

4. In the glove compartment between the two seats at the front were three packets containing a mixture of 32.67 grammes with 19.72 grammes of heroin, the subject of the second count.

5. The police were observing. They saw the car circling round Old Aberdeen Main Street. They stopped it. A police officer approached and said in a loud voice "It is police. Don't move."

6. Upon that the applicant opened the door and fled. In doing so, he pushed over one officer to the ground and kicked him on the head. He was soon caught and arrested for the assault on the police to which he said "How did I know he was a policeman?".

7. The drugs in count one were found on him and shortly thereafter the drugs in count 2 were found in the glove compartment.

8. At the police station he made a voluntary written statement in which he admitted that he owned the car and explained that his licence was suspended and his friend was driving. He also said that he was the only person who had the key and that the two of them were in the car for a joy-ride to Causeway Bay.

9. In answer to a further question, he said that as far as he could see his friend took nothing into the car when he got in.

The trial

10. At trial he gave evidence in his defence. This was not consistent with the account of matters that he had given in his voluntary statement. He admitted possession of the drugs in count 1 saying that they were for his own consumption, but denied knowledge of the drugs in the glove compartment.

11. The judge considered the whole of the circumstances. He considered the question whether the driver could have brought drugs with him into the car. He considered the applicant's evidence that the car had been in the possession of the driver for three days prior to his arrest. He compared that with his account in the voluntary statement in which he said nothing about the driver having the car for three days but did say that he was the only person who had the keys. The judge took account of the fact that the applicant was the owner of the car, that he was in the car when seen by the police before he fled and that the car had been circling in that vicinity of the arrest. Having taken into account all those matters he convicted. It was after a careful assessment of the evidence.

The application

12. The applicant submits that he should have leave to appeal on the basis that the judge failed to consider and assess the evidence properly, in particular that he had admitted the drugs in count 1 were for his own consumption, and that he was a drug addict. Secondly, that he was not the only person in the car and therefore that the driver could have been the person who had possession of the drugs. He submits that the police and prosecution had not properly investigated that matter.

13. He also says that the judge did not properly take into account the fact that the car had been in the hands of someone else for several days before the incident and had been driven by someone else. Finally, he relies upon the absence of evidence to prove his possession.

Conclusion

14. However, it is clear from the judge's reasons that he took into account all the necessary matters. There is nothing in any of the matters advanced by the applicant. His application is refused.