HKSAR v. TAM YUN KAI

CACC 475/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 1999

(ON APPEAL FROM HCCC NO. 50 OF 1999)

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J U D G M E N T

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Wong JA:

1. The Applicant was convicted by a jury in the Court of First Instance of trafficking in 158.40 grammes of what is commonly known as "Ice". He was sentenced by Deputy Judge Wesley Wong to a term of imprisonment for 11 years. He seeks leave to appeal against both conviction and sentence.

2. The prosecution case was that shortly before 7 a.m. on 4 October 1999 two plainclothes detective constables were patrolling outside the 7-Eleven Store at Hilton Tower in Tsim Sha Tsui East when they saw the Applicant walking towards them from the direction of Peninsula Centre with a plastic bag in his hand (Exhibit P1). The Applicant was looking around as he walked and acted nervously. When the Applicant walked past the two officers he suddenly hastened his pace and this aroused the suspicion of the officers who immediately alerted the other team members in the vicinity through their beat radios while they followed the Applicant to a taxi which the Applicant boarded. They rushed up to the taxi and with the assistance of the other team members who had by then arrived at the scene, the taxi was stopped and when one of the officers opened the taxi's left rear door the Applicant was sitting on the passenger seat still holding the plastic bag. The officers revealed their identity and a search was conducted on the Applicant. The plastic bag was opened and found to contain a juice carton box with the top opened (Exhibit P2). Inside the box there was something wrapped in white tissue papers, inside which were some plastic bags (Exhibit P3 & P4). The plastic bags contained some white substance suspected to be dangerous drugs (Exhibit P5).

3. The Applicant was arrested and cautioned and in response to the caution the Applicant said :

"Ah Sir, I took those "Ice" for somebody, it was none of my business."

4. The exhibits were subsequently examined by the Government Chemist and found to be 159.23 grammes of a crystalline solid containing 158.40 grammes of methamphetamine hydrochloride.

5. The Applicant elected to give evidence. His defence was that he was taking a taxi to go home after having been to a disco with friends. Several people dashed to the taxi, opened the door and grabbed him. He did not carry the plastic bag with him and had no dangerous drugs. He was dragged into a recess area where he was shown a bag by Detective Station Sergeant Tse who was holding it. In short, his case was that he had been framed up by the police with a serious crime which he had not committed.

6. The jury in due course returned a unanimous verdict of guilty against the Applicant.

7. In his written statement to the court, the Applicant said :

"I, student Tam Yun-kai, YP 194893, lodge an appeal against conviction and sentence since I am discontent with the verdict. At the time the cops dragged me to the dented area shown in Picture 4. The cop(s) denied it but the photograph did show the dented area."

8. Before us this morning, he repeated the allegation about the dented area and also added that the evidence between the taxi driver and the officers was inconsistent. We have carefully examined the records and we are satisfied that there is no substance to the points raised by the Applicant. All the evidence was before the jury and it is plain that the jury had considered all the evidence with care before they came to their conclusion of the Applicant's guilt. The judge also gave the jury an adequate and proper direction. There is nothing either in the summing-up or in the jury's verdict to cause us any concern. The evidence against the Applicant is overwhelming and we are satisfied that the conviction is neither unsafe nor unsatisfactory.

9. The application for leave to appeal against conviction is dismissed. The Applicant had informed us at the outset that he did not wish to pursue his application for leave to appeal against sentence. That application is also dismissed.

10. The Applicant had been warned when he appeared before the Vice-president on 10 January that should he wish to pursue his application and if it was found to be of no merit, he ran the risk of a loss of time. He had not heeded the advice. In these circumstances and as this is a completely unmeritorious application, we order that a period of three months which the Applicant had spent in custody will not be counted towards his sentence.