R. v. YEUNG CHUNG MING LOWLLY

IN THE COURT OF APPEAL

1996 No. 99
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the Court) :

1. On 25th January 1996, the Applicant was convicted by Judge Wilson in the District Court on a charge of trafficking in heroin. He had pleaded not guilty. He was sentenced to 5 years' imprisonment. He now applies for leave to appeal against his conviction. He has represented himself, his application for legal aid having been refused.

2. The prosecution's case was that the Applicant was stopped by 2 police officers as he was coming out of the building where he lived. He was holding an envelope. Inside it were found 16 polythene bags containing what turned out on analysis to be a quantity of heroin. According to the police officers, the Applicant admitted to them that the bags contained "white powder", and that he was forced "to do it" because he did not have a job. Where he was interviewed at the police station, he admitted that what he had been forced to do was to sell drugs, and that he had received $150.00 for every ounce of drugs he sold. The police officers' evidence was that the Applicant had signed the notebook of the police officer who had recorded what the Applicant had said when he was arrested, and that he had signed the record of the interview at the police station.

3. The Applicant's case was that as he had been leaving home he had noticed the envelope on top of his letter-box. He had picked it up to see if it was addressed to him, and that was when he had been approached by the police officers. He denied saying what the police officers had attributed to him, and he claimed that he had been forced to sign the notebook and the record of the interview by violence and threats of various kinds.

4. The judge acknowledged that on the day after his arrest two small abrasions were found by a doctor on the Applicant's cheek. However, the judge regarded these abrasions as neutral, and we cannot say that he was wrong to do so. At the end of the day, the judge rejected the Applicant's claim that he had not said what had been attributed to him. He found that the Applicant had voluntarily signed both the notebook and the record of the interview. He therefore ruled them admissible, and again we cannot say that he was wrong to do so. The judge saw and heard the witnesses, and we have not been able to discern any legitimate basis upon which we can interfere with his findings of fact on the issue.

5. Once the judge had ruled the notebook and the record of the interview to be admissible, the conviction of the Applicant became almost inevitable. Not surprisingly, the judge rejected the Applicant's account of picking up the envelope out of curiosity. Apart from anything else, it was inherently unlikely that anyone would have left this quantity of heroin in an envelope which any passer-by could simply pick up. Once the judge had concluded that the Applicant had been in possession of the envelope with knowledge of its contents, the judge's conclusion that the Applicant had been trafficking in the drugs cannot be faulted in view of the number of packets into which they were divided and the admissions which the Applicant had made to the police.

6. In his Grounds of Appeal, the Applicant refers to the documents recording his complaints about the police which were lodged at Lai Chi Kok Reception Centre and with CAPO. He complains that his solicitor did not produce them to the court. Even if that complaint is justified, those documents would only have had a very limited evidential value. They would not have been evidence that the police had assaulted the Applicant. They would only have been evidence that the Applicant had made these allegations against the police within a short time of leaving the police station, and even then they would only have been admissible if the time when the Applicant first made the complaints was in issue.

7. For these reasons, this application for leave to appeal against conviction must be refused.