R. v. CHENG MAN

IN THE COURT OF APPEAL

1994, No.419
(Criminal)

___________

_________________

J U D G M E N T

_________________

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

1. This applicant faced one count of trafficking in a dangerous drug. That count was particularized as follows - that he on the 7th of September, 1993 inside the abandoned fish wholesale market at Cadogan street, Western, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 280.90 grammes of a mixture containing 124.39 grammes of salts of esters of morphine. He was found guilty after trial before Deputy Judge Wilson and a jury and was sentenced to imprisonment for eight years. He now seeks leave to appeal against that conviction.

2. The applicant was stopped and searched at the place set out in the charge and a bag containing 432 packets of dangerous drugs was found under his shirt.

3. At the first hearing of this matter we were concerned as to the exact circumstances of that apprehension and we therefore asked that a transcript of the evidence be provided. This was done. The evidence of the arresting officer, PC 1398 LAU Wing-sun, was as follows:

"Q. Having found those little packets in the white Lung Wah Restaurant bag, did you speak to the defendant?

A. Yes.

Q. What did you say to him?

A. I took out one of the small packets, I opened it, and then I asked defendant what it was. Defendant said, 'Oh, these are powder.'

Q. What did you do then?

A. I wrap it up first, and then I said to the defendant in this way: 'Now I arrest you for possession of dangerous drugs', then cautioned him.

Q. What were the terms of the caution?

A. 'You are not obliged to say anything unless you wish to writing by me and given in evidence.'

Q. Did the defendant say anything in response to your arrest and caution?

A. Yes.

Q. What did he say?

A. He said, 'Ah Sir, I simply earn a few packets for consumption.' "

This admission was the only direct evidence of trafficking. It was an oral statement made by the applicant on arrest - what is usually referred to as "a verbal". Courts have approached such verbal admissions with extreme caution. It is all too easy for an unscrupulous officer to fabricate such an admission.

4. The applicant denied making any such admission and he denied having possession of the drugs. He suggested and has continued to suggest that he was framed by the police officer who, he said, knew him from previous occasions.

5. In his written grounds he alleges that the trial judge was prejudiced and did not fully understand the case. We have read the summing-up and we find nothing to support the allegation of prejudice. At the adjourned hearing before us he repeatedly stated that he was not involved in trafficking in dangerous drugs and that he was framed. He complained that there was nothing to show a direct contact between him and the drugs seized, i.e. that there was no fingerprint evidence. Because of this complaint we took the unusual course of adjourning the matter a second time. We asked Mr. Saw, who appeared for the Crown, to provide us with an indication as to how the police approach generally to the taking of fingerprint impressions and also, if it were possible, to tell us of the practicality of taking fingerprint impressions in circumstances such as this.

6. Mr. Saw, upon resumption, told us that that there are no guidelines or general directions to the police as to the taking of fingerprint impressions but that each decision rests with the OC case. He said that it is not the norm in stop and search operations to test for fingerprints, particularly where there has been an admission shortly after arrest. He said that the matter was otherwise where premises were located which were apparently being used for the manufacture of dangerous drugs in which circumstance fingerprint tests were normally carried out. There the matter rests. The jury did not have any fingerprint evidence before them. We are satisfied that there is nothing to support the suggestions of prejudice or lack of comprehension on the part of the trial judge. He dealt with the evidence carefully and fairly. The jury then had to deal with the matter upon the basis of the evidence which they had before them. There was evidence upon which they could properly come to the conclusion to which they came and there is nothing which calls for our interference in their decision.

7. The application for leave to appeal against conviction must therefore be refused.