HKSAR v. LAU MEI MEI

CACC 338/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 338 OF 2001

(ON APPEAL FROM HCCC NO. 186 OF 2001)

____________________________________

_______________________________

________________

J U D G M E N T

________________

Hon Stock JA (giving the judgment of the Court):

1 The applicant was indicted on two counts of trafficking in dangerous drugs. Count 1 alleged that she trafficked in 52.13 grammes of heroin hydrochloride (in a mixture of 213.41 grammes) which she had on her person at the staircase in a building in Sai Yeung Choi Street, Mongkok. Count 2 alleged that she trafficked in 51.89 grammes of heroin found inside a room on the third floor of that building.

2 On 31 August 2001, she was convicted after trial before Mr Recorder Lawrence Lok SC and a jury in relation to the first count; but she was acquitted of the second. She was sentenced in relation to the first count to a term of seven years' imprisonment. She now seeks leave to appeal against both conviction and sentence.

3 The prosecution case at trial was, in essence, that she was emerging from the building in Sai Yeung Choi Street in the company of another female, Andie Chung Wai-yee, and that the police stopped them and took them to a staircase inside. It was said that a brick-like substance, which was subsequently analysed to be heroin, was found in the applicant's jacket pocket. Also found on her was cash in the sum of $31,617. It was the evidence that on her arrest she said that the white powder belonged to her and had nothing to do with Andie. She had keys on her and, with the keys, the officers entered room B in the building, and when they entered there was another woman called Au, apparently the sister-in-law of the applicant, inside.

4 The applicant allegedly stated that there was no need to search, and that the drugs were in a drawer in the bedroom. The police found further drugs which were the subject to Count 2. Some trafficking paraphernalia was also found in the bedroom.

5 Comments made by the applicant at the scene of her arrest were recorded by a police officer in a notebook. After she was taken back to the police station, she made further admissions which were recorded in a written statement. There she said she purchased the drugs for $14,000 and alleged that she would sell drugs to earn money. It is common ground that she was then a drug addict. The $31,000 found on her person was, she said, from the sale of heroin.

6 The defence case was that the applicant and her friend Chung were rushed and assaulted by a group of police officers outside the building; that no drugs were found in the applicant's pocket; that she made no admissions whatsoever; that the signatures to the notebook and later statements were procured by a series of inducements and threats; and that she signed statements whilst suffering withdrawal symptoms.

7 According to her case, all drugs that were found were found inside the premises, as was the cash. Her case was that she neither had possession or knowledge of the drugs and that she believed that the drugs belonged to the tenant of the premises and to the tenant's husband.

8 The first three days of the trial were taken up by a voir dire as to the voluntariness of the alleged admissions, and the Recorder in due course ruled the evidence admissible. Evidence was then given afresh on the general issue, and the applicant gave evidence on her own behalf as did Miss Chung, as well as a doctor - his evidence concerned withdrawal symptoms.

9 In relation to conviction, the applicant contends that the statements made by her were not voluntarily made, and also that her fingerprints were not found on the packet of heroin. She has drawn to our attention a number of features of her case and has put arguments about the credibility of her case and the suggested inherent incredibility of the admissions made to the police. It is not for us to retry the case. The points that she has put forward were all canvassed, or available to be canvassed, at trial. There is nothing in the grounds advanced. The Recorder heard evidence on the question of admissibility and we have no reason to suppose that he made any error in that determination. The absence of fingerprints in the context of the case which we have described is of scant assistance to the applicant. The absence of fingerprints does not demonstrate absence of contact. It is merely a factor to be taken into account, and no more. The summing-up was comprehensive and fair, and the application for leave to appeal against conviction is dismissed.

10 As for sentence, the applicant is aged 31 years. She has a number of previous convictions for possession of dangerous drugs. The judge took a starting point of eight years' imprisonment which was a correct starting point. He then sentenced the applicant to a term of seven years' imprisonment. Counsel for the applicant told the judge that the applicant had in February 2001 been to hospital and was found to have "some problems with her white blood cells and she was suspected to have the preliminary stage of blood cancer". The Recorder said that he took that into account. He did not know how that was to develop but, "as an act of mercy", he reduced her sentence by one year. Whilst the Recorder was no doubt acting out of a sense of compassion, this reduction was not, in the circumstances, warranted. There was no supporting evidence for the contention, no prognosis, and no suggestion advanced why the normal course in cases of suggested ill health should not be followed, namely, to draw the matter to the attention of the executive.

11 There is nothing in the grounds of application for leave to appeal against sentence and that application is also dismissed.

12 We would only add to this judgment by commending Mr Vincent Wong, counsel for the respondent, for his written submissions which are a model of the type of submissions which this court requires as assistance in summarising succinctly, adequately, and accurately, the background facts, the contending cases of the prosecution and the defence, and the key issues before the court below.