CHUNG HON CHUEN and Another v. R.

1995, No.660
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, Ag. C.J. (Giving the Judgment of the Court) :

1. The two applicants Chung Hon Chuen and Wong Hon Wing apply for leave to appeal against their convictions. They were each convicted by Deputy Judge Aiken Q.C. sitting with a jury of trafficking in dangerous drugs. This was 100.98 kilograms of crystalline solid methamphetamine hydrochloride, commonly known as ice. It contained 99.16 kilograms of the particular narcotic. They were each sentenced to 20 years' imprisonment.

2. The facts are relatively simple. The Crown case was that the 1st applicant Chung who had driven back from Mainland China was delivering the ice to Wong in the basement carpark of the Pacific Trade Centre No.2 in Kowloon Bay, when both were arrested by officers of the Narcotics Bureau on 14th December 1994, those officers having had them under surveillance.

3. The evidence against them consisted of the observations and records kept by the Narcotics Bureau officers. It related to Chung having been observed crossing the border and bringing in his truck to the Pacific Trade Centre. There he unloaded three large bags labelled "duck feet" from the truck with the 2nd applicant Wong watching him. They were arrested and the contents were later established to be ice.

4. Chung's evidence was that Wong was an old family friend of his who asked him to bring back from Mainland China some gourmet powder that he would be given by a man in China. He said this was left for him by someone he did not know. He was to be paid for doing it; originally, he had said $5,000, but in evidence he said $400 to $500. He had not declared the gourmet powder when he came through Customs, but his explanation was that he would have had to produce a complete set of separate documents for the gourmet powder if he had declared it and that the Customs would have confiscated it without such documents. It is not surprising that the jury rejected his defence and found him guilty.

5. The evidence in respect of the 2nd applicant was that he was waiting in the basement carpark and he joined Chung, chatted with him and watched him unloading these three bags. He then wrote something on a piece of paper, at which point the police announced their presence. He tried to tear up the piece of paper and to swallow it and resisted the police when they attempted to stop him and to arrest him.

6. Wong did not give evidence.

7. Chung's grounds of appeal given in his written notice of application were that the judge misdirected the jury. He did not say in what respect. He also said that the assumption or presumption in s.47 of Chapter 134 might have violated the principle of presumed innocence in the Bill of Rights. We will say at once that there is nothing in this point. It was touched upon by counsel below and dealt with by the judge. However before us, Chung has asked for an adjournment. He says that his relations would wish to raise funds and that his solicitors had offered to find a lawyer. His conviction was on 20th September 1995, coming up to a year now. Legal aid appears to have been refused around February 1996. He has since been before the Court repeatedly seeking further adjournments to raise funds. He acknowledged at one stage that he was not able to raise funds and said he would defend himself. He sought a transcript of the proceedings and was provided with it. His relations managed to retain for a short period a firm of solicitors who sought advice from counsel, but then the solicitors had to withdraw because they were not put in funds.

8. Before us, this being the fourth occasion, he has pursued in person an application for an adjournment, the applicant Chung has not been able to show any prospect of raising the necessary funds. On the contrary having been afforded ample time to do so, the indications are reasonably clear that neither he nor his family are able to do so. In those circumstances, we refused his application for adjournment. We add that he confined himself to asking for an adjournment and did not suggest any further grounds of appeal.

9. Coming to the 2nd applicant Wong, as mentioned, he did not give evidence. His grounds in his written notice of appeal are these. He says the conviction was extremely unjust without giving reasons for that complaint He also says the judge misdirected the jury in that the 1st accused's testimony was used to incriminate him and find him guilty. That of course was entirely proper. What the 1st applicant said under oath in the witness box, and which was subject to cross-examination, could properly be used against the 2nd applicant. There is nothing in that point, with which the judge dealt carefully, isolating that evidence from what the 1st applicant said in his statement.

10. The 2nd applicant adds in his written grounds of appeal that the conviction was against the spirit of justice and equity. There is nothing in that point also. He added before us today that during the trial, his lawyer did not act like a professional. Again, there is nothing in that point. He also says that he wished to give evidence, but that towards the end of the trial, his counsel said he had better not give evidence. This complaint was neither established in any way, nor was there any attempt to do so. It has recently become fashionable to trot out such complaints at the drop of a hat. But they are very serious allegations. Counsel in the exercise of their profession duties do not treat such matters lightly. Where a serious allegation of that sort is made, it should be established. Also, it has to be shown that what is complained of might have made a difference to the Court's conclusions. There is no suggestion before us nor any indication that had the 2nd applicant given evidence, anything of the slightest significance might have emerged. We find no substance in this point also.

11. The jury were plainly entitled to accept the 1st applicant's evidence, and also to draw an inference from the 2nd applicant's presence and actions at the carpark that he was a party to the bringing in of this huge quantity of ice under the pretext that it was gourmet powder.

12. Quite apart from the grounds relied upon by the applicants, the judge gave the defence every latitude and summed up in great detail, repeating and fully detailing the defence case and evidence. Indeed, we observe with some astonishment and no little concern that this relatively very simple case against the applicants seems to have run to an astonishing 24 hearing days, even if all those days were not fully taken up. Be that as it may, we have heard nothing from the applicants nor detected anything in the disproportionately bulky transcript before us to warrant any intervention by this Court. Both applicants are refused leave to appeal.