HKSAR v. LOW CHAK KEUNG ROSON

CACC 390/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 390 OF 1999

(ON APPEAL FROM HCCC 377 OF 1998)

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J U D G M E N T

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

1. This is an application for leave to appeal against conviction. The applicant was convicted by a unanimous verdict of a jury upon an indictment containing two counts; the first alleging that on 28 May 1998 in a car in Shatin he trafficked in a dangerous drug namely 1,137 grammes of heroin; and the second that on the same day inside No. 45 Tsok Pok Hang Village in Shatin he trafficked in 2,414 grammes of heroin. Upon conviction he was sentenced to 22 years imprisonment on count 1, and 25 years on count 2, and the two sentences were ordered to run concurrently, making a total of 25 years.

2. The evidence against him was straightforward. Customs officers were maintaining observation, and at about 5.45p.m. on 28 May they saw the applicant drive his vehicle towards the entrance of the village. He alighted, carrying a red bag, and he took the bag into No. 45. About ten minutes later, he came out, this time carrying out a blue and white bag, and he placed that bag behind the driver's seat, and then he boarded the car and drove towards the entrance of the village. He was then stopped by the customs officers. They searched him, and in an inside pocket of his jacket they found some tissue paper, and, in that, some white substance which does not form the basis of any charge. The applicant was however asked what it was, and he made no reply. The vehicle was searched, and inside the blue and white bag was found a grey plastic bag, and inside that grey bag were two packets of wrapped magazine paper as well as 16 bottles with pills. What those pills were, the evidence before us does not disclose. They do not form the subject of any charge. Inside the magazine paper wrappings were four brick like objects, which turned out to be the heroin which is the subject of count 1. It was admitted at trial that the fingerprints of the applicant were found on the grey plastic bag, and on the magazine paper. The applicant was told that the officers suspected him to be in possession of dangerous drugs and cautioned him, and again he made no reply.

3. The applicant was taken back to No. 45 Tsok Pok Hang Village and a man, who was the applicant's girlfriend's brother, opened the door. The officers searched the red bag and, again, in that bag, wrapped in plastic bags, were brick like objects - eight in number - which was heroin, the subject of the second count. There had been some suggestion of an incriminating reply, but this was the subject of a voir dire, and the prosecution did not in the event adduce the evidence before the jury.

4. Three witnesses were called for the prosecution at the trial: an officer who observed the applicant's comings and goings and was present when the drugs were uncovered; the government chemist; and the exhibits officer. Cross-examination of these witnesses was lengthy, and designed to show a number of features said to be favourable to the applicant: for example, that he did not run away; that fingerprints were found only on the packets in the bag in the car; that there were documents found in his car which tallied with his story that he was about to deliver documents to somebody whom he had arranged to meet; that there was found in the house no drug manufacturing or drug taking paraphernalia; and there was cross-examination directed to suggesting that the small packets found on the applicant's person contained a pill and that the content was not in powder form.

5. The applicant gave evidence at trial. He admitted carrying these bags to his house, that is No. 45 Tsok Pok Hang Village, and carrying the blue and white bag out again to his vehicle. But his defence was that he did not know these containers carried dangerous drugs. His defence was that he thought they carried health food. He had a friend called Michael whom he had known for some years, and he had lent Michael his car that day and when he, the applicant, went to pick up his car, Michael telephoned him and said that he, Michael, had left a bag of health food in the car, and wanted to fetch it later. The applicant opened the car boot to see if the bag was there, and he opened the bag and saw objects wrapped up, and bottles of health food. He, the applicant, had in any event returned home to collect a couple of policies which he had promised to deliver to a girl called Polly, for her brother. When Michael telephoned a little later and discovered that the applicant was on his way home, he asked the applicant if he would bring some of the health food with him from home, because Michael had a friend who wanted to deliver some of the food to the Mainland. Michael gave him instructions about the food required, namely, the food in the grey bag, and he was told that the goods wrapped in magazine paper was health food. Believing all this, the applicant did as he was told. In opening the bag to retrieve what was needed, he removed some adhesive tape to examine what was inside and that is when he saw this item wrapped in tissue paper which was later found by the officers in his pocket, though the applicant said it was a pill and not powder. He asked Michael what it was, and Michael said it was a health food sample. The applicant took the specified packets to his car and was arrested.

6. As the judge told the jury, if the applicant's evidence was or might be true, then he was to be acquitted. The only issue in the case was whether the applicant knew that what he was carrying were dangerous drugs.

7. There was evidence called on the applicant's behalf, primarily designed to support his account that he had arranged to meet this girl to deliver polices to her for her brother.

8. The applicant's complaints before us in his written particulars of appeal are many. He says that the judge should not have allowed his case to go part heard with a lapse of two weeks. What he is referring to is the fact that there was a delay between the voir dire, which ended in his favour, and the trial on the general issue. We see no problem with this. The trial before the jury on the general issue was heard all in one go, as it were, and that is what mattered. There was no special circumstance in this case which required the trial of the two issues to be heard in immediate sequence.

9. The applicant then criticised the judge for errors allegedly made by the customs officers. To use but one example, he says: "the judge allowed the prosecution witness's search of my home in my absence." This is a reference to the evidence that his home was searched with him standing outside. The prosecution evidence was that he was watching the search from the door. There is nothing in this point, and indeed there is nothing in the other points of this nature, for there was no issue between defence and prosecution as to what was found in the car or in the house. It was not disputed that the applicant had been carrying all the items in question. The only dispute as to fact was whether the small white substance found on his person was in powder form or in pill form.

10. The applicant says that the judge stopped him from calling character witnesses. We have examined the transcript. The defence intimated after the applicant and other witnesses had given evidence that it was intended to call a character witness. Since the applicant had a previous conviction, the judge expressed concern as to how the issue was to be dealt with, not least because there had been no cross-examination of the applicant as to character. The issue was canvassed between counsel and judge in court, and then counsel for the applicant took instructions, and he then told the court that his instructions were to call no further evidence. We are satisfied that the judge did not stop the applicant from adducing evidence.

11. Then it is said that the judge cast doubt on his evidence. By that, we take the applicant to be referring to comments made by the judge which suggested that the jury might take a sceptical view of certain of the applicant's evidence. It may be said that in the context of a short and uncomplicated case such as this, and in the light of the speeches by counsel, the summing-up would have been no less helpful to the jury without these comments. But they were few. The judge mentioned factors in the applicant's favour as well, and he made it quite clear to the jury that such views as he might express were subject to their overriding function as deciders of facts. Looking at the summing-up in the round, we do not think that the judge went anywhere near overstepping acceptable boundaries.

12. Then we have the ground that counsel for the applicant did not perform his job properly. For example, it is said that counsel did not cross-examine the leader of the group of customs officers; and that the source of the tip which led to surveillance was not ascertained; that no steps were taken to find out whether there were any other fingerprints in the vehicle. Well, we have examined the cross-examination by counsel. He could not have cross-examined the leader of the customs officers because he was not called, and we see in any event no point in any requirement that he be presented for cross-examination. There was, as we say, very little in dispute as far as the facts were concerned. Such cross-examination as was conducted was comprehensive and sensible, designed to draw out the relevant matters in the applicant's favour, and to test the one issue of fact where there was a dispute. We find nothing in the criticism of counsel.

13. The remainder of the grounds comprise a litany of factors said to suggest why the applicant could not be guilty of the offence. For example, why would he be so stupid as to put heroin in a flat or in premises which he rented, with rent receipts there; why would he not have taken steps to hide the drugs; and so on. These are pointers all of which the jury had no doubt in mind, but none forms a viable ground of appeal.

14. The case against the applicant seems to us to have been very strong indeed. The summing-up was accurate and left the correct issues to the jury for determination. We see no basis whatsoever for allowing this application for leave to appeal against conviction, and it is dismissed.