THE QUEEN v. CHAN YING KIN

IN THE COURT OF APPEAL

No. 375 of 1987
(Criminal)

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JUDGMENT

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Hunter, J.A.:

1. On 10th July of this year the applicant stood trial before Judge Tung in the Tsuen Wan District Court facing two charges. The first charge was one of trafficking in dangerous drugs. The second charge was one of possession of dangerous drugs. He was convicted on both charges. He now seeks leave to appeal against those convictions.

2. In relation to the first charge of trafficking eye witness evidence was given by three police officers of an apparent sale of dangerous drugs by the applicant to a man named Tang. That transaction was disputed in evidence both by the applicant and by Tang.

3. Having considered all the evidence the trial judge accepted as true the evidence given by the three police officers. He said:

"There is ample evidence from the police eye witnesses in this case to show that the defendant was trafficking dangerous drugs at the first scene under the observation and eyes of the police officers."

No possible criticism can be directed to that finding.

4. The second charge arose in this way. After the first incident the applicant was arrested and taken to his home. Whilst at his home a search was conducted. He then apparently became concerned that the police might arrest his father. He is recorded of having said this to one of the police officers:

"Ah Sir, don't arrest my father. I am going to tell you as to where the stuff are kept but you have to promise me. "

The Police officer's answer was:

"What are they ?"

The applicant replied:

"They are the stuffs."

5. The applicant then asked that police officer to follow him out of the house. He was taken to a point at the back of the house. There he pointed to a plank. When that plank was removed it revealed a hole in the ground and in that hole there were three white paper bags containing dangerous drugs.

6. The trial judge concluded on the face of that evidence that evidence that:

"The irresistable inference can be drawn that he did not just have knowledge but had custody and control of those dangerous drugs."

No criticism could he directed to that conclusion.

7. In fairness to the applicant, since he is not represented, Mr. Harris for the prosecution raised with the court the question as to whether or not any inducement had been held out by the police officer in the house by not expressly denying his ability to make any promise. Even if that could be said, it would not render in any way inadmissible the evidence of the subsequent search. For my part I can see no criticism that can he directed to the police officer, who dries no more than ask "what are they?" In these circumstances there is no substance in this application which must he dismissed.