HKSAR v. NG SIU KAN

CACC 156/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 156 OF 2002

(ON APPEAL FROM DCCC 999 OF 2001)

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J U D G M E N T

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Hon Jackson J (giving the judgment of the Court):

1. On 15 March this year the applicant was convicted after trial in the District Court of 4 offences of trafficking in heroin. On 25 March he was sentenced to terms of 2 years imprisonment in respect of each offence part of which terms was ordered to be served concurrently and part consecutively. In the result, the total sentence imposed was one of 3 years and 6 months.

2. The applicant seeks leave to renew his application to appeal against his conviction, his first application having been dismissed by Mayo V-P on 24 July 2002.

3. The facts of the offences as accepted by the learned Deputy Judge can be shortly stated. The applicant was arrested as a result of an undercover police operation conducted in August 2001 in the Sham Shui Po area which was set up to investigate street level trafficking in dangerous drugs.

4. During that operation the applicant and another man were seen on 2 occasions to offer, and then sell to an undercover police officer a small pellet of heroin. In addition the applicant was observed on 2 further occasions acting alone in selling heroin.

5. When he was arrested and after he had been cautioned the applicant made admissions to the effect that he sold heroin on behalf of another person because he needed the money.

6. The applicant's original ground of appeal was simply this: -

"The witness did not mention the special feature I have, that is the mole on my face near the eye."

and presumably from that he was saying either that he had been wrongly identified by the police as participating in drug trafficking or that the identification was simply unreliable because no mention was made by the police of his quite apparent facial feature.

7. The Deputy Judge addressed the question of identification fully in his reasons for verdict and he was in no doubt whatsoever (and for very good reason) that the applicant had been correctly identified by the undercover police officers who dealt with him on more than one occasion. Indeed after the first occasion it was a case not of identification but one a recognition.

8. As to the applicant's admissions following his arrest he, the applicant, challenged their admissability at trial but the learned Deputy Judge found them to be admissable and he admitted them into evidence.

9. Before us the applicant repeated what he said in his original application for leave concerning identification. He also referred us to a number of other matters relating to that identification which were apparently raised at trial.

10. All of those matters were before the learned Deputy District Judge who, as I say, addressed the question of identification fully in his reasons of verdict. In our judgment there is absolutely nothing in this application whatsoever and it is accordingly dismissed.

11. We direct that a period of 3 months which the applicant has already served shall not be reckoned as part of the applicant's sentence.