HKSAR v. HUNG WAI KIN

CACC 201/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 201 OF 2004

(ON APPEAL FROM DCCC NO. 187 of 2004)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.  On 23 December 2003 at about 9.30 p.m., the applicant- Hung Wai Kin hired a taxi (JV 9459) in Mongkok. He sat in the left rear passenger seat and asked to be driven to the Festival Walk. He was wearing a windbreaker with pockets.

2.  The taxi was intercepted at a police roadblock at Tat Chee Avenue and searched. A Vitasoy packet with 97.73 grammes of a mixture containing 41.61 grammes of heroin hydrochloride was found inside the taxi. The applicant was also carrying 134 c.c. of a liquid containing codeine (a Part One Poison) on his person.

3.  When cautioned, the applicant denied that the heroine hydrochloride was his. He even said that he did not know where the police found them. However, the applicant admitted that the Part One Poison was purchased from a dispensary in Mongkok. When further interviewed by the police at the Shep Kip Mei Police Station, the applicant repeated a similar story.

4.  The incident led to the 1^st charge of trafficking in the heroin hydrochloride and the 2^nd charge of possession of the Part One Poison against the applicant.

5.  The applicant pleaded guilty to the possession charge but not guilty to the trafficking charge. Judge Whaley in the District Court convicted him after trial of the trafficking charge as well.

6.  The applicant was sentenced to 7 years’ imprisonment on the 1^st charge and fined $50 on the 2^nd charge. A suspended sentence of 8 months’ imprisonment imposed on 26 June 2003 for a possession of dangerous drugs offence was not activated.

7.  The applicant now seeks leave to appeal against both conviction and sentence.

Prosecution Evidence

8.  Apart from the admitted facts relating to the interception and the search of the taxi, the taxi driver and a number of police officers manning the roadblock gave evidence.

9.  PC 34444 said he found the applicant suspicious as he appeared “dull” and tried to avoid eye contact. PC52325 said the applicant appeared to be nervous and put his left hand inside his windbreaker, searching. He then saw the applicant took the Vitasoy packet from the left side pocket of his windbreaker and discarded it on the floor of the taxi between his legs.

10.  When questioned what he had discarded, the applicant did not respond. The Part One Poison was then found from the applicant’s person with over $6,000, (10 $500 notes and 11 $100 notes and some change) and two mobile telephones. PC52325 reported what he had found to a woman sergeant in the presence of the applicant, but the applicant did not raise any objection.

11.  When the applicant was cautioned together with a record of how the drugs were found, the applicant simply signed to confirm it was accurate.

Defence Case

12.  In his defence, the applicant said after he was asked to show his identity card at the roadblock, a police officer picked up something between the seat and the left rear door of the taxi. The police officer asked him what it was. In reply, he said he did not know and that earlier passengers might have left it behind. The police officer then threw it on the ground beside the taxi and said it was just garbage.

13.  However, three to five seconds later, the police officer picked up the packet and asked if the applicant knew what was inside. The applicant replied: “Ah Sir, I don’t know where you have searched it out. I don’t know what is inside.”

14.  The applicant admitted that the Part One Poison was found on his person. He said he had bought it from a dispensary in Mongkok.

15.  The applicant denied that he had taken out the Vitasoy packet from his person and discarded it on the floor of the taxi.

16.  The applicant said he had $6,000 on his person as he was going to Festival Walk, looking for Christmas presents and garments for himself.

17.  The judge accepted the evidence of the police officers and rejected that of the applicant. The judge took the view that the reaction and behaviour of the applicant was inconsistent with his defence. The judge found that it was the applicant who threw the Vitasoy packet on the floor of the taxi and that he was aware of the nature of its content.

18.  The judge therefore convicted the applicant of the 1^st charge.

Grounds of Appeal 

19.  The applicant, in his written application suggests that the judge had not taken into consideration the doubts raised during the trial and that his fingerprints and DNA were not found on the Vitasoy packet. He said that the police officers did not handle the exhibits properly and there were discrepancies in their evidence. He emphasized that the judge was unfair as he accepted the evidence of the police officers too easily. He also submits before us that the judge did not indicate that he accepted the evidence of the police officers.

20.  The issue in the case is indeed very simple and straightforward. Contrary to the applicant’s submission, the judge had clearly said he found the evidence of the taxi driver and the police officers to be truthful, accurate and reliable.

21.  The judge was entitled to accept the evidence of the police officers that it was the applicant who threw the Vitasoy packet onto the taxi floor. Once that finding was made against the applicant, the conviction against him of the 1^st charge is inescapable. The absence of the applicant’s fingerprints or DNA on the Vitasoy packet is not significant. The allegation of bias is completely unfounded.

22.  We have considered the facts of the case carefully. We do not find the conviction against the applicant in any way unsafe or unsatisfactory. There is no merit in the proposed appeal against conviction and the application for leave to appeal against conviction is dismissed.

Sentence

23.  The applicant complains that the 7 years’ imprisonment is the highest sentence within the jurisdiction of the District Court. This may well be the case. However, according to the guidelines set down in R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in 10 to 50 grammes of heroin attracts a sentence of 5 to 8 years’ imprisonment. The sentence imposed on the 1^st charge is within the guidelines and the fine of $50 on the 2^nd charge is insignificant. The applicant should consider himself extremely lucky when the judge did not activate the suspended sentence. We see no reason to interfere with the sentence. The application for leave to appeal against sentence is also dismissed.