HKSAR v. LUI CHUN KEUNG

CACC 406/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 406 OF 2004

(ON APPEAL FROM DCCC NO. 228 of 2004)

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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 26 August 2004, the applicant was convicted on two charges of trafficking in heroin hydrochloride and a 3^rd charge of keeping a divan following a trial in the District Court before Judge W Wong.  A co-defendant (D2) was also convicted on the 3^rd charge.  An application before the single judge for leave to appeal against conviction was refused on 22 July 2005 and the matter now comes before us as a renewal of that application.

2.  The facts could not have been simpler.  Two police officers (PWs 1 and 2), who were pretending to be addicts, went to 4^th floor premises in Temple Street on 15 October 2003 in order to buy heroin.  D2 opened the door and let them go inside.  The prosecution’s case was that the applicant opened an inner door and allowed PW2 to enter ‘Room C’.  It was there that the applicant explained the different prices for the bags of drugs on offer.  PW2 chose a packet and paid $300 with marked money in return for a mixture which contained 0.44 of a gramme of heroin (1^st charge).  The packet containing this was removed from a larger bag in which there were other packets.  Later, when this larger bag was recovered, the various mixtures inside it were found to contain 6.16 grammes of heroin (2^nd charge).  Inside ‘Room D’ at these premises, PW2 found a man ‘chasing the dragon’. There were also four other people together with various items used for the consumption of dangerous drugs inside the room.  Police reinforcements were called and after they had arrived, the applicant admitted he was the person in charge.

3.  The applicant did not give evidence at his trial and he called no witnesses.

4.  In his written grounds of appeal, the applicant expressed dissatisfaction with his conviction on all the charges on the grounds that the judge had “already ruled there was no prima facie case, that a number of ‘doubts’ had arisen from the evidence and that the judge had failed to make reference to any such doubts”.

5.  Plainly, the applicant is under a misapprehension about the judge having made a ruling that there was no case for him to answer.  This may have been a misunderstanding arising from D2’s acquittal on the first two charges on which he was jointly tried.  As the judge indicated in his Reasons for Verdict, at the end of the prosecution’s case the applicant was given an explanation as to the alternative courses then open to him upon which he elected not to go into the witness box.  At that time, the applicant had legal representation.

6.  The Reasons for Verdict outline the nature of the case against the applicant and make reference to “minor discrepancies” in the evidence which in the judge’s view were not enough to affect the credibility of the accounts given to him by the police officers.

7.  In recent correspondence, the applicant has written to ask for a stay of these proceedings because, despite his requests for various transcripts, he has been denied access to these.  In fact, the applicant was provided with the transcripts of the evidence given by PWs 1 and 2.  However, on 15 August 2005 the applicant requested to be supplied with further transcripts (having been refused legal aid on 8 November 2004).  When asked to provide reasons for his request, he failed to do so.

8.  No reasons have emerged as to why these proceedings should be delayed further.  The applicant was informed that no stay of these proceedings would be granted.  This was followed by a lengthy submission made by the applicant during these proceedings.  Arising from what the applicant said, the only matter to which we ought to refer related to another trial in which the applicant was charged with keeping a divan and acquitted.

9.  The applicant provided us with the Reasons for Verdict given in this District Court trial (DCCC 383/2004) which took place a few weeks after the trial with which we are presently concerned although his arrest in that case had been 26 days earlier.  The applicant was acquitted in that trial on evidence which again concerned PW1 and PW2.  However, the applicant’s explicit suggestion that these officers may have been engaged in deliberately framing him on the evidence they gave against him in that trial is not borne out by the transcript we have been given.  The material parts of the Reasons for Verdict, (where the applicant is referred to as the ‘4^th accused’) read as follows:

“	12.	The prosecution case against the 4th accused boils down to PW1’s evidence of the manner in which the 4th accused, accompanied by the 3rd accused, so PW1 says, questioned PW1 as though vetting him for suitability for admission and then interacting with those inside to have PW1 and himself and the 3rd accused admitted to the premises. The 4th accused’s account certainly has a convenient and indeed unlikely sound to it but it cannot be said to be automatically unbelievable as being inherently improbable.
	13.	That view of his evidence is probably enough to lead to Charges 1 and 2 being decided in his favour but I comment further as follows: the evidence of PW1 as to the 4th accused’s words and actions at the door for the premises is not without its problems. For example, the discrepancy as to the 4th accused’s clothing at the time, suggestive of a possible mix-up between the 4th accused and another, possibly the 3rd accused.
	14.	But even setting that aside and taking PW1’s evidence at face value, the words and actions attributed to 4th accused show a familiarity with the premises and those there that a frequent visitor, as the 4th accused confessed to being, would have.
	15.	Certainly the comment about the boss not wanting unfamiliar persons admitted is somewhat stronger evidence against the 4th accused. However, in the result, the prosecution evidence itself falls short of establishing proof of Charges 1 and 2 to the required standard had the 4th accused’s evidence been plainly not to be believed which, as I have said, is not the case.
	16.	The prosecution has not proven either Charge 1 or Charge 2 beyond a reasonable doubt as against the 4th accused and he is acquitted of both charges.”

10.  It is plain that Judge Wyeth, who acquitted the applicant in DCCC 383/2004, did so because of the doubts which had arisen on the evidence and not for any other reason.

11.  In the present case, the applicant was convicted on clear and convincing evidence and there is no merit whatsoever in his application which is dismissed.

12.  The applicant was warned by the single judge as to the possible consequences of renewing his application in the event that it was viewed as unmeritorious by the full court.  He has also addressed us in these proceedings as to why an order for loss of time ought not to be made.  Having now heard the applicant, we are satisfied, in view of the total lack of merit in the application for leave to appeal, that it is appropriate to order, under the terms of section 83W of the Criminal Procedure Ordinance, Cap. 221, that 3 months of the time the applicant has been in custody awaiting this hearing shall not be reckoned as part of the term of the sentence he is currently serving.