R. v. LEUNG WING HUNG

IN THE COURT OF APPEAL

1995, No. 807
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He also seeks leave to appeal against the sentence of six years' imprisonment imposed upon him for this offence. The application for leave to appeal against sentence is made out of time and no satisfactory explanation has been given for the delay.

2. The facts are simple and straight-forward. According to the prosecution case two police officers were performing surveillance operations late in the evening of 2 March 1994. At 1am on 3 March they observed a man who it later transpired was the applicant in Reclamation Street Kowloon. They approached the man and asked him what he was doing. He said that he was going to purchase some cigarettes. One of the officers then said that he was going to search the applicant. The applicant pushed the officer aside and attempted to escape. He slipped and fell. The officers apprehended him and conducted a search. They found some packets in one of his pockets which they suspected contained dangerous drugs. It would appear that their suspicions were well founded as the Government Chemist's Certificate indicates that the substance contained in the bags were the dangerous drugs described in the charge namely 165.29 grams of a substance containing 25.16 grams of salts of esters of morphine.

3. When the officers found the packet they claimed that the applicant said that the dangerous drugs were for his own consumption and he asked to be given a chance. A post recorded statement made by one of the officers was signed by the applicant. This was disputed by him. He claimed that the signature appearing on the statement was not his. The judge was satisfied that it was.

4. The applicant testified at his trial before His Honour Judge Pang. He claimed that the dangerous drugs were planted on him by the officers. He also alleged police brutality. It is significant to observe that the applicant did make an exculpatory statement in which he denied the offence.

5. In his grounds of appeal the applicant refers to an injury report. It is evident from the Reasons for Verdict that the judge did give careful consideration to this aspect of the matter. There was a medical report which gave details of very minor injuries which had been sustained by the applicant. The doctor who signed the report has left the Government service and did not give evidence at the trial. The judge did not form the view that the injuries referred to were consistent with the assaults the applicant claimed had occurred.

6. The other grounds advanced were of a more general nature. There was an allegation that the trial judge had been prejudiced in accepting the evidence of the police officers and rejecting his evidence.

7. Before us the applicant said there was no evidence that he had signed the post recorded statement voluntarily. The answer to this is that there was. There was the evidence of the police officers. He also said that his request for fingerprints to be taken of the plastic bag he was alleged to be holding had not been complied with. This was not an issue which was raised at the trial below.

8. There is nothing of substance in the application for leave to appeal against conviction and the application is dismissed. As we have said no satisfactory explanation has been given for the failure to file the application for leave to appeal against sentence in time. We do not propose entertaining the application.