R. v. LUI TIM LAM

IN THE COURT OF APPEAL

1994, No. 616

(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is an application for leave to appeal against conviction. The applicant in this case was convicted of trafficking in dangerous drugs by a jury's verdict of five to two and sentenced to 13 years' imprisonment. There is no appeal against sentence.

2. There are two main grounds of appeal, namely: (1) that the learned trial judge was wrong in ruling that there was a case to answer; (2) that the quality of the evidence was such that this court should hold that the verdict was unsafe and unsatisfactory.

3. Briefly, the evidence against the applicant consisted of (a) his entering into an apartment; (b) his leaving the apartment with a co-accused about half an hour later; (c) his being taken back into the apartment where drugs and paraphernalia for trafficking were found; (d) microscopic traces of heroin were found on his person, particularly his shoes and two nail clippings; (e) the evidence did not show whether the nail clippings came from one or two hands or indeed whether the traces came from the upper or lower side of the finger nails; (f) there was found on the premises a hammer with traces of dangerous drugs on it, and (g) before the entry into the premises of the police arresting party, hammering was heard from within.

4. Upon this evidence, counsel for the defence submitted that there was no case to answer. The trial judge, after anxious consideration and relying on the case of Galbraith [1981] 73 Cr App R 124 at 127, came to the view that though the evidence was weak, there was indeed sufficient evidence upon which a reasonable and properly directed jury could convict.

5. Mr Mullick, in his helpful written submission, discussed the evidence in detail, in particular the amateurish, unscientific way in which the police treated the dangerous drugs and examination for traces of dangerous drugs on the applicant.

6. It is not suggested by the applicant's counsel that there was anything that could be attacked in the summing up itself although it is urged upon us that the evidence was so tenuous that a jury, even properly directed, could not convict. We agree. There is nothing in the evidence either taken singly or in their aggregate which pointed conclusively to the applicant's guilt in the offence charged.

7. We are of the view that the judge should have ruled that there was no case to answer in the circumstances. It is not necessary in the light of what we have said to consider further whether the verdict was unsafe and unsatisfactory.

8. For these reasons, we allow the application for leave to appeal against conviction, treat the hearing of the application as the hearing of the appeal, allow the appeal and quash the conviction. The sentence is accordingly set aside.