SHEN DA-CHENG v. R.

1995, No.292

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. : (Giving the judgment of the Court)

1. The applicant was convicted after trial before a jury of possession of dangerous drugs for the purpose of unlawful trafficking. The amount of drugs involved was 922.76 grammes of a mixture containing 899.25 grammes of cocaine hydrochloride. He was sentenced to 16 years of imprisonment. He now applies for leave to appeal against both conviction and sentence.

2. On 21st August 1991, at 11:30 a.m., the police, acting under information that there would be a drug transaction at a particular location in Tsim Sha Tsui, kept surveillance at the junction of Granville Road and Carnarvon Road. The applicant was seen to approach another man who was standing on the pavement waiting in a suspicious manner. He was then carrying a black bag on his shoulder. Some police officers went up and intercepted him. He turned to run away but after a struggle, was subdued by the officers. He was searched at a nearby staircase. The officers said that they found the dangerous drugs inside the bag he was carrying. This formed the subject matter of the charge of which he was convicted.

3. The applicant later made a statement to the police under caution. In the statement he said among other things that he was a Chinese citizen who had emigrated to Bolivia. There he came to know a person called Lo Sam and another called Chu Kwok Ping. He owed Lo Sam some money and was asked by him to come to Hong Kong to do some business for him. While in Hong Kong, the contact man was one called Pong Cheung. With the assistance of this man, he went to the airport to collect baggage and stored it in Room 320 of the Fu Kiu Guesthouse at Chatham Road. Inside the baggage, there were some paintings and the dangerous drugs were kept inside the scrolls of paintings. He had been asked by Lo Sam to make several deliveries of various quantities. On 20th August 1991, he was asked to meet Chu Kwok Ping who wanted 1 kg of cocaine to be delivered on the following day to a meeting place at Tsim Sha Tsui. The two of them were arrested by the police.

4. At the trial, the applicant gave evidence. He admitted that at the time of the arrest, he was carrying the black bag and that it contained one kilogramme of a food seasoning substance which was called monosodium glutamate. He said that he brought this from a restaurant in Bolivia as a gift to his wife. He disputed that the drugs alleged to have been found by the police were found inside the bag and said that they did not belong to him. He also alleged that his cautioned statement was obtained from him by the police using violence and that the contents did not come from him and were not true.

5. We should also mention that after his arrest, the police went with him to Room 320 of the Fu Kiu Guesthouse to locate the baggage he had mentioned in his cautioned statement. Inside the baggage, a further quantity of dangerous drugs were found. This formed the subject matter of the second charge laid against him. According to the police, he was found to have the keys to the hotel room and the baggage. He had previously checked into this room before, stayed there for a while but was not staying there any more. There was some evidence that other people had access to that room. Other officers gave evidence with regard to the seizure of the keys on him.

6. At the end of the trial, the jury unanimously found him guilty of the first charge but by a majority of five to two, found him not guilty of the second charge.

7. For the purpose of the present application, the applicant had prepared a lengthy submission containing eight pages. In essence, there are three main grounds of appeal : first, he was treated unfairly during the trial since the court interpreter was not fair and neutral; second, his cautioned statement should not have been admitted in evidence; and third, there were discrepancies in the prosecution's evidence with regard to the discovery and seizure of the dangerous drugs in the bag.

8. Before us, he expanded on these 3 grounds and added a fourth ground which was that the evidence of an officer, PC22445, who alleged that three bunches of keys one of which could open the baggage containing the second lot of drugs were found on him, was totally unreliable in view of the discrepancies between the officer's earlier witness statements and his evidence in court. He said that when he was arrested, the officer did not find those keys on him. The officer also did not mention in his first record about the keys. It was in a second statement made two weeks after the incident that the officer mentioned that. There was also a difference in the time at which the officer was alleged to have found the keys.

9. It is clear that the keys alleged to have been found on him led to the seizure of the further quantity of dangerous drugs in the room at the Guesthouse. This related to the second charge of which he was acquitted. However, the applicant said that this illustrated that the police had employed improper means to get evidence against him and that the trial was not fair. Whatever the reason behind the jury's acquittal on the second charge, it would seem that they were not satisfied beyond reasonable doubt that they could rely on the officer's evidence regarding the seizure of the keys. That being the case, the statutory presumption which may arise from the possession of keys to the containers where dangerous drugs are found did not apply. If the officer who was alleged to have seized the keys from the applicant was also involved in the stop and search in the street and the discovery of the dangerous drugs in the bag, there might be some substance in the applicant's complaint that similarly the evidence with regard to the seizure of drugs in the bag was not reliable as well. However, it appears that the officer, PC22445, against whom the applicant complained with regard to the keys, was not involved in the stop and search of the applicant and had not given evidence to that effect. In fact, the applicant during his submission before us admitted that only three officers gave evidence in relation to the first charge and they were a Sergeant, PC2237 and PC45597. None of these officers said anything about the keys in their evidence. His complaint about the seizure of the keys had nothing to do with his conviction on the first charge. This ground of appeal cannot be sustained.

10. With regard to the first ground of appeal, the applicant complained that the court interpreter had criticised him unfavourably when Exhibit P-48 which was the check-in register in the Guesthouse and Exhibit P-60 which was the applicant's cautioned statement were produced. It appears from the transcript that during submissions in the absence of the jury on the admissibility of the check-in register, P-48, the court interpreter drew the attention of the court and counsel to the signature appearing in the register and that appearing in the cautioned statement. The trial judge had quite properly pointed this out to both counsel and the applicant. He went on to say that he dismissed that from his mind until and unless he heard any evidence about it. It would seem, therefore, that such an exchange was made in the absence of the jury and the court had expressly stated that he would ignore it. We do not think the applicant was in any way prejudiced. There was no other complaint against the court interpreter. We see no merit in this ground.

11. We come to the second ground of appeal put forward by the applicant. He alleged that there were many doubts in his cautioned statement and that the police officers did not follow the normal procedure in taking his statement. He also pointed out the differences in the time required to have the statement read out in open court and the time alleged to have been taken by the officers in reading the statement back to him during his interview. We find no substance in this ground at all. In his summing up, the trial judge had quite fully dealt with the cautioned statement. He drew the attention of the jury to the evidence of the officers, reminding them of the discrepancies and the contradictions in the police evidence. He also dealt at length with the injuries found on the applicant and the evidence from the doctor who attended him. He also referred to the evidence of the applicant and the allegations of violence made by him against the officers. We can see no valid criticism on the summing up. Furthermore, it is quite obvious that one would require a longer time to read it out loud in court sentence by sentence and to wait for the interpreter to read it out in English than to read it during the course of an interview between the officer and the applicant.

12. Finally, the applicant in his third ground of appeal complained that the evidence of the officers who searched and arrested him was not reliable. He said that the officers had given evidence to the effect that they saw a transparent plastic bag containing the dangerous drugs inside the black bag he was carrying but did not see anything yellow or green. He pointed out that the photograph of the bag and the contents inside showed that the plastic bag which was said to contain the dangerous drugs was predominantly in yellow and green with only a "5%" portion which was transparent. The applicant also complained that the trial judge had failed to carry out an experiment in court to test whether the dangerous drugs alleged to have been found by the officers could fit into the bag.

13. It is not disputed that when the applicant was arrested, he was carrying the bag in question. It is also not denied that there was a plastic bag inside which contained a large quantity of powder-form substance. He said that it was a food seasoning substance called monosodium glutamate which he brought from Bolivia. In the summing up, the trial judge had referred to the officers' evidence with regard to the seizure of the drugs inside the bag. He drew the attention of the jury to the discrepancies in the officers' evidence. He pointed out that the officers said that the part they saw of the plastic bag was transparent and that the exhibit and the photograph clearly showed that it was predominantly yellow and green. We do not think the summing up can be criticized. There was indeed a portion of the bag which was transparent. We take the view that having had their attention drawn to the discrepancies between the evidence given by the officers and the exhibits produced in court, the jury were entitled to and did take into account all the evidence on this aspect of the case. They were entitled to be satisfied beyond reasonable doubt that the applicant had possession of the dangerous drugs. There is no merit in this ground.

14. It also appears from the transcript that the judge and counsel had discussed the possibility of conducting an experiment in court whereby the dangerous drugs would be placed into the bag which was seized by the police. It was found that it was impracticable to do so either with the drugs in question or with a substitute. In view of the obvious difficulties, the suggestion was dropped and counsel for the applicant did not pursue the matter. We fail to see what useful purpose can be served by performing such an experiment several years after the incident. We do not think that there is anything in this ground of appeal.

15. In the circumstances, we do not think that the conviction can in any way be regarded as unsafe or unsatisfactory. The application for leave to appeal against conviction must be refused.

16. In his application for leave to appeal against sentence, the applicant said that he had been detained for 4 years and that this was a great pressure on him and his family. His wife had divorced him and his child and mother had also left him. In view of the quantity of drugs involved, we do not think for one moment that the sentence is in any way manifestly excessive. The application is also refused.