HKSAR v. HO HAU KWONG

CACC289/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 289 OF 1999

(ON APPEAL FROM DCCC 259 OF 1999)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 13th May 1999, the Applicant was convicted on charges of possessing a mixture containing 8.49 grammes of heroin hydrochloride (charge 1) and trafficking in a mixture containing 0.86 grammes of heroin hydrochloride (charge 2), following a trial in the District Court before Judge Wilson. The Applicant was sentenced to nine months and two years respectively on charges 1 and 2 to be served concurrently. He now seeks leave to appeal against conviction.

2. The Applicant provided no written reasons for his appeal, but has expressed at some length his defence all over again in this court today. In particular, it is his belief that the judge failed to understand the true nature of the case which was presented before him in the court below.

3. We disagree with what the Applicant has said because it is apparent that the judge fully understood the nature of the evidence. The Applicant (D1 at trial) was caught red-handed after he had been seen to sell heroin to D2 through a taxi window. Police stopped the taxi. The evidence concerning the sale was the subject of charge 2, and the heroin in the first charge was found in a bag the Applicant had with him.

4. The judge assessed the prosecution's witnesses and found that all of the police officers who had testified were honest and reliable. The Applicant gave evidence but his story contained inherent improbabilities and the judge did not believe him. The judge was perfectly entitled to make these findings and, on the evidence, the case against the Applicant was overwhelming.

5. We are not here to re-try a case where we have not had the benefit of seeing the witnesses or hearing what they had to say. It is abundantly plain that no error is to be found in the judge's approach to this case. Accordingly, the application is dismissed.

6. The application has been wholly unmeritorious. As a result of that, we shall order that four months of the time spent in custody by the Applicant shall not count towards his sentence.