R. v. TSIM KWOK KEE

IN THE COURT OF APPEAL

1995, No 750
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This applicant is a man in his early 40's. He seeks leave to appeal against his conviction before HH Judge Longley in the District Court on October 31 last year.

2. It was on the one charge which he faced. That was of trafficking in dangerous drugs consisting of 84.37 gms of a mixture containing 33.47 gms of heroin hydrochloride.

3. Shortly stated, the prosecution's case and its evidence was along these lines. On December 15, 1994, a party of police officers entered the flat in Wanchai in which the applicant lived with his family. There they found the dangerous drugs in question behind a rice cooker in the kitchen. The accused said that the dangerous drugs were his, had nothing to do with his family and was for his own consumption.

4. Those dangerous drugs were contained as to 53.94 gms of a mixture containing 21.61 gms of heroin hydrochloride in two transparent plastic bags and as to 30.47 gms of a mixture containing 11.68 gms of heroin hydrochloride in 48 plastic bags.

5. The "street" value of those drugs was somewhat in excess of $42,000.

6. That, in short, was the effect of the prosecution's case and evidence.

7. The applicant did not go into the witness box. But he called his mother, his wife and a cleaner at the building in which the flat was located. That defence evidence was broadly to the effect that the drugs had been "planted" by the police and that the applicant, far from having made any admission in relation to those drugs, had denied all knowledge of them.

8. The judge accepted the prosecutions' evidence; took the view that the only reasonable inference was that the drugs were for trafficking; and convicted accordingly.

9. Turning to the grounds of appeal, the 1st ground is that the judge:

"wrongly relied on alleged oral admissions made by the Applicant."

10. The 2nd ground, which can be considered along with the 1st, reads that the judge:

"wrongly failed to consider the issue of the credibility of PW1 (PC45245), the officer whom allegedly found the dangerous drugs, and the evidence of whom caused counsel for the Crown to withdraw his application to have admitted into evidence a record of interview and a caution statement of the applicant."

11. What that is all about comes to this. That witness PC 45245, who was the officer who cautioned the applicant, at first said: that when the drugs were found the applicant said that they were for his own consumption; and that when he was cautioned the applicant said that the drugs had nothing to do with his family and were for his own consumption. However, later on in his evidence, that constable conceded that he might have mixed up what the applicant said when the drugs were found with what he said when he was cautioned.

12. The judge did not feel able to convict on the evidence of this constable. And counsel for the prosecution obviously had qualms about this witness's reliability, which does not necessarily mean his honesty, for counsel did not seek to introduce in evidence the written statement taken by this constable. There was, however, the evidence of another constable, who was the second witness for the prosecution. This was PC 49328. He said - and he stuck to it - that when the drugs were found the applicant said the drugs were his; and that when he was cautioned the applicant said that the drugs had nothing to do with his family and were for his own consumption.

13. The judge was perfectly entitled, having seen and heard the witnesses, to accept the honesty and reliability of the second prosecution witness and to find that the applicant had indeed made the admissions which that witness said he had made. So much for the 1st and 2nd grounds of appeal.

14. The 3rd ground of appeal is that the judge:

"wrongly based his inference of trafficking from evidence which was both inadmissible and speculative."

15. As we have said, the applicant gave no evidence himself. His wife, whom he called, gave some evidence as to his income which did not suit the defence on the question of whether he was in a position to spend a lot of money on drugs for his own consumption.

16. There is no need to decide to what extent the defence was saddled with that evidence. The judge did not really rely on it.

17. What really mattered was that there was a large number of packets and the street value of the drugs in question was very considerable - bearing in mind that nobody would regard this applicant, if he was a drug dealer, as being one on very large scale.

18. The point made by the defence is that there was no evidence of the wholesale value of the drugs. But the judge was aware that the wholesale value of the drugs would of course be less than the street value of the drugs. It is quite common for the defence in these cases to make the point that wholesale value is bound to be less than street value. We would have thought that the prosecution would always readily agree and say that that difference accounts for why people would peddle drugs in the street, in other words, that it shows that money can be made doing so.

19. It is also urged on the applicant's behalf that, on the question of whether the only reasonable inference to be drawn from the possession of a large quantity of dangerous drugs was that those drugs were for the purpose of trafficking, one should bear in mind that a drug addict may buy a large supply at one time to reduce the number of times he has to get involved in a purchase, each such instance carrying a risk of getting caught.

20. Well, the point was there for the judge to consider. He no doubt considered it. Any tribunal of fact is bound to have done so. No doubt, a tribunal of fact would also consider this. Buying a large quantity of drugs in a single purchase for self-consumption, while reducing that risk, would carry another and perhaps far greater risk, namely that of being found in possession of a large quantity of drugs.

21. What jurors and trial judges make of these rival point is a matter for them in each case. The net result in the present case is that Judge Longley was perfectly entitled to conclude, as he did, that in all the circumstances of the present case the only reasonable inference was that the drugs were possessed for the purpose of trafficking.

22. Finally, the point is made, although not dealt with in the grounds of appeal, that there was some visit by the police to the accused's flat after he had tendered a not guilty plea. It is said that that raises a lurking doubt because, counsel for the applicant says, one cannot imagine a reason why the police would have made the visit except perhaps to try to put some pressure on the applicant, through his wife, by threatening to prosecute her or other members of the applicant's family unless he changed his plea to one of guilty. It is rank speculation that the police did anything of the kind. It is rank speculation for the very simple reason that the applicant's wife who gave evidence never suggested anything of the sort.

23. If true, it would have been the very first thing that she would have said in attacking the credibility of the officers who the defence alleged were "framing" the applicant. The omission of this point from the grounds of appeal was correct. Its inclusion in the oral argument was unfortunate.

24. There is nothing in this application whatsoever. It is dismissed accordingly.