HKSAR v. LUNG TSU TUNG, JOE

CACC 197/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 197 OF 2007

(ON APPEAL FROM DCCC No. 968 of 2006 and DCCC 92 of 2007)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 19 February 2008, we dismissed the application for leave to appeal against conviction and sentence. We indicated that we would hand down our reasons in writing and this we now do.

2.  The applicant, Lung Tsu-tung, Joe, appeared before District Court Judge Chua on a charge of trafficking in a dangerous drug and a charge of attempting to escape from lawful custody. She pleaded not guilty, but was convicted and sentenced to the respective terms of 5 years and 3 months, and 1 month’s imprisonment to run consecutively, making a total sentence of 5 years and 4 months.

3.  The applicant sought leave to appeal against both conviction and sentence.

4.  The evidence against the applicant on the drug trafficking charge was simple and straightforward.

5.  On 21 August 2006, the applicant was stopped near No 86 Portland Street Kowloon by a team of police officers. When the applicant was told that a female police officer would be arranged to search her, she said there was no need and she then voluntarily took out, from the right pocket of her shorts, a tissue paper with 168 packets of dangerous drugs inside four plastic bags. Upon being cautioned, the applicant said, “Ah Sir, I am delivering white powder for others. Do not arrest me.” The applicant’s admission was recorded in a police notebook.

6.  The packets of dangerous drugs turned out to be 32.01 grams of a mixture, containing 10.89 grams of heroin hydrochloride, the subject matter of the 1^st charge, which had a street value of about $17,000.

7.  The applicant was taken back to her residence for a search, but nothing was seized.

8.  During a video-recorded interview on 22 August 2006, the applicant said “Ah Shing”, whom she met in a mah-jong school, asked her to retrieve the dangerous drugs from a park in Dundas Street and to deliver them for $500.

9.  Whilst the applicant was detained in Tai Lam Detention Centre on 21 December 2006, she complained of abdominal pain and was taken to Queen Elizabeth Hospital for treatment. Whilst being kept at the custodial ward, the applicant suddenly jumped out of bed and ran towards the fire exit door, trying to escape. She was chased and subdued.

Defence Case

10.  The applicant disputed the admissions she was alleged to have made. She said before her arrest, she was walking in the street with a male friend, Lam Wai-ming. They were stopped and searched, but nothing was found.

11.  The police then took her to her flat for a search and the officers then produced the drugs, saying that they had been found after a search.

12.  The applicant said she then heard the noise of Lam Wai-ming being assaulted and she decided to shoulder the responsibility in order to have Lam Wai-ming released. The applicant said she only signed the police notebook after the video interview was completed.

13.  The applicant said she only made the admission in the video interview because the police promised to take her for methadone and release her on bail. There had been prior rehearsal and she co-operated with the police during the interview.

14.  The judge rejected the applicant’s allegations and ruled her admission admissible as evidence.

15.  The applicant then elected not to give or call any evidence on the general issue.

16.  The judge accepted the evidence of the police and concluded that the applicant produced the dangerous drugs from her pocket after she was intercepted in the street. The judge accepted the applicant’s admission that she had agreed to deliver the drugs for a reward.

17.  The judge also accepted the police evidence that the applicant attempted to escape from police custody at the Queen Elizabeth Hospital on 21 December 2006.

18.  The judge therefore convicted the applicant of both charges.

Grounds of Appeal

19.  In her written application, the applicant simply said “she applies for leave to appeal against verdict and find the sentence too heavy.”

20.  The applicant also emphasized in her submission before us that there was no finger print evidence against her and that the judge had picked on her lawyer. She also repeated her allegation against the police officers.

21.  The prosecution presented clear and cogent evidence against the applicant in respect of both charges. The team of police officers all testified that the applicant produced the dangerous drugs from her person. The applicant made admissions, firstly to the arresting officer and then during a video-recorded interview.

22.  The applicant chose not to give evidence on the general issue to explain, contradict or refute the police evidence against her.

23.  The judge, in the circumstance, was entitled to accept the prosecution evidence and to convict the applicant of both charges. None of the matters put forward by the applicant gave rise to any doubt about her guilt of both charges. We do not find the convictions in any way unsafe or unsatisfactory.

24.  The application for leave to appeal against conviction was therefore dismissed.

Sentence

25.  The applicant trafficked in 10.89 grams of heroin. According to R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in 10 to 50 grams of heroin attracts a tariff sentence of 5 to 8 years’ imprisonment. The applicant trafficked in 10.89 grams of heroin and she also had 5 previous convictions. The sentence of 5 years and 3 months imposed by the judge in respect of the drug trafficking charge is not manifestly excessive.

26.  The judge was entitled to impose an additional one-month sentence on the charge of attempting to escape from lawful custody.

27.  There was no valid basis to reduce either the individual sentences or the total sentence. The application for leave to appeal against sentence was also dismissed.