HKSAR v. CHAN PING KIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.249
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced two counts, both of trafficking in a dangerous drug. The first count alleged that on 12th July 1996, inside the male toilet adjacent to the alley beside Southorn Playground, he unlawfully trafficked in 41.94 grammes of a mixture containing 35.11 grammes of heroin hydrochloride. The second count alleged that on that same day at the first floor of No.165 Tung Choi Street, Mongkok, he trafficked in 137.69 grammes of a mixture containing 20.63 grammes of heroin hydrochloride. He was found guilty of the first count after trial before Stock J. and a jury but was acquitted of the second count. He now seeks leave to appeal against the conviction on the first count.

2. It was the prosecution case that he was seen by police officers who were carrying out surveillance duty leaving the premises at Tung Choi Street and he was followed when he boarded the MTR. The police officers gave evidence of the movements of the applicant until his arrest at the Wanchai Station. He was then taken to a public lavatory in Southorn Playground where he was searched and the dangerous drugs, the subject of the first count, were found. The police officers gave evidence that later they went to the Tung Choi Street residence and found the dangerous drugs, the subject of the second count, together with packaging paraphernalia.

3. The applicant has sought to argue six grounds before this court. He says firstly that there was no fingerprint evidence to establish that he had had any connection with the Tung Choi Street premises. That being so he argues that there was no evidence to establish that he had obtained any dangerous drugs from those premises and that, as he was not seen by the surveillance police officers to have been handed any dangerous drugs when they had him under observation, there must be doubt as to the evidence that dangerous drugs were found upon him. He says, in short, that there must be doubt as to whether he had got any drugs from the Tung Choi Street residence because there was no fingerprint evidence linking him with those premises and that further be doubt as to whether he had any drugs at all as he was never seen being handed any drugs.

4. The absence of fingerprint evidence does not establish anything either way. It is not unusual, because of the nature of such evidence, that no fingerprints are able to be discerned, even after dusting has been carried out. There is nothing in this ground.

5. It is his second ground that there was a discrepancy between the evidence of two police officers 23675 and 52783. This discrepancy he suggests was a major one which should have cast doubt upon their veracity. However, an examination of the transcript has revealed that no such discrepancy exists.

6. In his third ground he suggests that the evidence indicated a consecutive course of events on that night and that the conviction on both counts relied upon the evidence of two police officers. He submits that as the jury had a doubt as to the second count they should have also had doubt upon the first count. His submission is, in effect, that given the acquittal on the second count, the conviction on the first count was irrational and, for that reason, should be quashed. We do not consider that to be so at all. The jury were instructed carefully by the judge as to the question of the proof of possession of the drugs in the second count and were told that if they had any doubt in that regard they should acquit. They clearly did give the benefit of the doubt to the applicant but this casts no doubt at all upon the propriety of the conviction on the first count.

7. The fourth ground is that the police officers had a motive for fabricating evidence against him because he had in another matter testified in favour of a defendant. He has told us, however, that the officer against whom the allegation of partiality was made was subjected to cross-examination thereon. This was clearly a matter that was canvassed before the jury and was essentially one for their consideration. Nothing can be made of it before this court.

8. In his fifth ground, he suggests that there was no statement taken from one of the officers involved in the apprehension of the man Wong. There is nothing in this ground. There has not been shown to be any materiality in anything said or done by that officer.

9. In his final ground, he complains that there was no evidence to establish trafficking at the place charged, i.e. in the toilet at Southorn Playground, as he was then in the custody of the police. This totally misapprehends the law. The evidence, if accepted, established trafficking on his part while he was in possession of the drugs up until they were found by the arresting police officer.

10. The applicant has not raised any matters that cast doubt on the propriety of his conviction and this application is refused. His application has been entirely without merit and we order that there be two months' loss of time.