R. v. KOO LOI SHING

IN THE COURT OF APPEAL

1996, No.519
(Criminal)

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J U D G M E N T

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

1. This applicant faced one charge of trafficking in a dangerous drug. The offence was particularized that he on 13th April 1993, at the rear lane of San Lok Street, No.46 Shek Wu Hui, Sheung Shui, New Territories, unlawfully trafficked in a dangerous drug, namely 26.37 grammes of a mixture containing 18.10 grammes of salts of esters of morphine.

2. The facts upon which the Crown relied were that two plain clothes officers, on surveillance duty, were laying in ambush inside a primary school in San Lok Street. They observed the applicant take a red object from the left pocket of his jacket, look at it and then put it back into his pocket. As they rushed out to intercept him he turned and escaped. However they gave chase and subsequently stopped him. Upon search they found four plastic bags containing a total of 84 packets of suspected dangerous drugs inside the left pocket of his jacket and 6 similar packets from his right pocket. The applicant admitted that that the packets were white powder and said under caution that they were for his own consumption. The examination by the government chemist established that the drugs were as set out in the charge. The applicant maintained when he gave evidence that the drugs were for his own consumption saying that he had them because he was taking them with him to China.

3. The trial judge, having heard all of the evidence including expert evidence as to retail price and purity of dangerous drugs sold in Hong Kong, did not accept the defendant's testimony insofar as he attempted to exculpate himself. He went on:

"He claimed that he was financially in a position to purchase the said drugs for his own consumption. According to the Defendant, when he had work, he would earn about HK$300 to HK$450 per day depending on whether there was overtime work. On the other hand, he had to spend about HK$300.00 to HK$400.00 per day to satisfy his addiction. If this were the only source of income, the Defendant would not have been able to save any money to buy the quantity of drugs found on him. However, the defendant said in cross-examination that his relatives also sent remittances to him. I do not believe that the Defendant's testimony that he has other source of income. I find it incredible that if there were such remittances, the Defendant could not produce even one piece of document which evidences such remittances. Further, I consider that the Defendant was making up his story as and when he feels it necessary to perfect it."

The judge later in his finding said:

"Having rejected the Defendant's testimony does not in itself enable the prosecution to prove that he was 'trafficking' in drugs. Such issue must be proven beyond reasonable doubt by the prosecution through evidence which I accept. There is no direct evidence on this point. I therefore have to be satisfied that the only irresistible inference to be drawn was that the Defendant was 'trafficking' in drugs. ........................

In this connection, the matters which I took into account included:-

(a) the Defendant was not in a financial position to buy such large quantity of drugs for his own consumption. These drugs must have been possessed by him on behalf of some other people, namely, drug trafficker (s);

(a) the quantity of drugs found on the Defendant far exceeded the quantity which he would possess for his own consumption and the only irresistible reason for his doing so was to traffic in the drugs.

I am therefore satisfied that the prosecution has proven the Charge against the Defendant."

4. The applicant today has submitted that the trial judge was biased and has repeated that he had bought the heroin in order to take it to Mainland China. He suggests that the prosecution failed properly to present the evidence to the court and that the judge convicted him, in the face of his continued denial that he was a trafficker, without any concrete evidence. This is not so. The judge fully considered all of the evidence before him. Having rejected the evidence of the applicant he, we are satisfied, was properly drawn to the irresistible conclusion that the charge of trafficking had been proved beyond reasonable doubt. The application for leave to appeal against conviction must, therefore, be refused.

5. The applicant also seeks leave to appeal against sentence. In this regard he urged that the sentence was too long as he has a wife and children to support in China and is suffering from hearing problems. The quantity fell within the range that would call, given the guidelines in Lau Tak-ming [1990] 2 HKLR 370, for a sentence of between five and eight years. The judge started at the bottom of that range, i.e. five years, and then said:

"After a discount is made for the Defendant's admission of a substantial part of the prosecution's case, a sentence of 4 1/2 years' imprisonment should be passed and the Defendant is so sentenced."

We cannot find any fault with that approach. The application for leave to appeal against sentence must also be refused.