R. v. CHICK TAK WING and Another

IN THE COURT OF APPEAL

1994, No. 531
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving judgment of the Court):

1. The two applicants seek leave to appeal against both their convictions and the sentences imposed upon them for trafficking in dangerous drugs. In the case of the first applicant (A1) the application to appeal against sentence is made out of time.

2. The explanation given by A1 for being out of time was that he was advised by the Director of Legal Aid that the sentence of 10 years' imprisonment imposed upon him and the second applicant (A2) was manifestly excessive. He had not realised this until he had received this letter. We propose hearing the application notwithstanding the fact that it is made out of time.

3. The facts were fairly simple. According to the prosecution case a team of police officers went to Tin Liu Village at Tze Wan Shan to undertake surveillance duties. One of the team PW1 was detailed to man an observation post on the roof of the William Booth Secondary School. From this vantage point he could with the assistance of binoculars see Yuk Wah Street and the hill path leading to Tin Liu Village. He was in radio contact with other members of the police team.

4. PW1 saw a brown private car registration No. DS1362 arrive at the roundabout at the end of Yuk Wah Street. It stopped and two men who were later identified as the applicants got out of the car.

5. The men went up the path leading to the village and stopped outside a hut. One of the men opened the door of the hut and both of them went in. Shortly after this they came out and A2 was holding a black bag in his hand. The men walked quickly back to the car. PW1 transmitted his observations back to his team which then intercepted the men when they reached the car. The men were searched. PW3, the officer who searched A1 found a plastic resealable medicine bag in his pocket which contained a white powder like substance. He asked A1 what it was and he said that it was white powder but it belonged to A2.

6. When the officers made their first approach to A2 he attempted to turn around and walk away. He was grabbed by one of the officers and quickly brought into line. The black bag was searched and found to contain seven packets which were suspected to have in them dangerous drugs. A search was then conducted of the brown car and the hut but nothing of significance was found.

7. The applicants were arrested and brought back to the police station. A1 did not go into the witness box. The only witness he called was a doctor who examined him at the Lai Chi Kok Reception Centre on 7 August 1993. This doctor gave evidence of noting that there were three blisters on his right thigh. He gave evidence that it was possible that these could have been caused by someone applying a lighted cigarette to the area.

8. A2 gave evidence and also called a doctor to testify on his behalf. He denied trafficking in dangerous drugs. It was his evidence that the police had planted the dangerous drugs on him and A1. He also gave evidence of police brutality and that it had only been as a result of this that he had made admissions concerning the offence.

9. A great deal of time at the trial was spent on a detailed examination of the police officers' notebooks and the reason for the omissions and discrepancies in the notebooks.

10. Saied J in a lengthy summing-up took the jury through the evidence and commented in detail upon it.

11. In the grounds of appeal lodged by A1 he makes a number of complaints. In general terms it can be said that they centred round a complaint that his previous convictions were made known to the jury. It would appear however from questions which we put to him a retrial was ordered and that at the second trial no reference was made to his previous convictions. This would seem to dispose of the main complaints made by him in his grounds of appeal.

12. However he also added a further additional ground in which he made a complaint that the signature which was on the statement he made was a forgery. As no statements purportedly made by him were admitted as evidence in his trial this complaint does not appear to have had any merit.

13. A2 made similar complaints to those made by A1 concerning the retrial and the observations which we have made earlier would be equally applicable in the case of his complaint. He added however that he thought the trial judge was prejudiced. He gave no particulars of the alleged prejudice. There is no reason to suppose that there was any prejudice on the part of the trial judge. It was not necessary for the trial judge to recuse himself simply because he had been made aware at the earlier trial of A2's previous convictions.

14. The other complaint made by A2 was that his character had been put into issue before the jury. The answer to this complaint is that he had attacked the character of the police officers who had taken statements from him and as a result of his attack on the police officer's character it was quite proper for the judge to allow his character to be brought into issue.

15. The final complaint made by A2 was that there were discrepancies in the evidence which was given by witnesses No. 1 to 7.

16. All of this evidence was before the jury and as we have said Saied J did comment in detail upon the discrepancies which existed. The jury notwithstanding these discrepancies were satisfied with the prosecution evidence that the charge had been proved beyond a reasonable doubt.

17. We do not think that either A1 or A2's convictions were in any way unsafe or unsatisfactory and the applications for leave to appeal against their convictions are dismissed.

18. Mr Poll represents both men on sentence. He submits that as the charge was for joint possession and as the amount was at the lower end of the third tier of the tariff in Lau Tak-ming a sentence of 10 years' imprisonment was manifestly excessive.

19. We do not think that this submission can be right. The guidelines indicated are guidelines. They are not a straight jacket. The sentences which were imposed were within the guidelines. The quantity of the dangerous drug is only one of the factors which is weighed by a sentencing judge. He has regard to all the circumstances and if it is within the guidelines the sentence imposed is unlikely to be interfered with. We accept that the sentences of 10 years which were imposed were towards the higher end of the scale but we do not think that we would be justified in interfering with them. The applications are dismissed.