THE QUEEN v. HU TIAN YUE

IN THE COURT OF APPEAL

1994, No.636
(Criminal)

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JUDGMENT

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Mayo, JA, giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He was charged with trafficking in 3,357.03 grams of a substance containing 3,215.88 grams of cocaine hydrochloride.

2. Prior to the time of his arrest the applicant had been the subject of police surveillance. Police officers gave evidence of seeing him emerge from premises in Cameron Road, Tsimshatsui and board a taxi. At that time he was not holding anything. The taxi went to premises at Junk Bay. The applicant entered the premises and later came out carrying a bag. He boarded a taxi which was followed by the police officers in another taxi. When the taxi got to Cameron Road it stopped in a traffic jam and the police officers got out of their taxi. They approached the taxi that the applicant was in and arrested him. They took his bag from which they found the dangerous drugs which are the subject of the charge. According to the evidence of the arresting Police Constable, the applicant stated that he did not know what was in the bag. He said that it had been given to him by a man at the airport. Later he identified the man as being a Mr Li Nin-kut.

3. At his trial the applicant gave rather different evidence. He said that he had been living in Bolivia with a girlfriend who had become pregnant. He had decided that his girlfriend should give birth to the child in Hong Kong.

4. For this purpose he had intended to take a tenancy of suitable accommodation. Through the introduction of a Mr Tak Sai-ming he had met Mr Li who he hoped would assist him in finding premises. Mr Li had shown him premises at On Ning Garden, Junk Bay, which appeared to be suitable.

5. On the day of his arrest he had gone to these premises. Before doing so Mr Li had requested him to bring a package which would be given to him by the present occupant of the premises Mr Mak. As Mr Li had been assisting him he had agreed to this. It had been this package which had been in his possession when he was arrested by the police.

6. A Notice of Motion lies before us in which the applicant seeks our leave to introduce additional evidence in the form of an affirmation by one of the applicant’s fellow prisoners Mr Lu Xiao-ming, serving a sentence of imprisonment at Stanley also for trafficking in dangerous drugs.

7. Mr Lu affirms that prior to his conviction he had visited Bolivia and knew some of the people involved in trafficking in dangerous drugs. In particular he knew Mr Li. He expressed the belief from his knowledge of Mr Li that it was likely that he would use someone such as the applicant as a dupe to carry dangerous drugs for him.

8. We do not think that the evidence of Mr Lu really takes matters any further. Even if his evidence were to be believed it is highly speculative. In the normal course of events it can be assumed that persons engaging in activities such as trafficking in dangerous drugs are indeed likely to dupe anyone they can to carry drugs for them.

9. What was of paramount importance in the present case were the circumstances under which the applicant came to be arrested and the evidence he gave at his trial.

10. The issue which was before the jury was whether the prosecution was able to prove at the appropriate level that the applicant’s involvement was sufficient to amount to trafficking in dangerous drugs.

11. The fact that Mr Lu knew Mr Li and thought that he was the sort of person who would assume the role attributed to him by the applicant would not materially assist the defence case. Indeed the fact that the applicant had had any dealings with an alleged drug trafficker might even have redounded to his disadvantage.

12. Be that as it may we decline to grant leave to adduce the additional evidence as the evidence would not afford any ground of appeal. This leaves the remaining grounds of appeal.

13. Mr Mullick for the applicant submitted that the trial judge had not sufficiently directed the jury that they must be sure that the possession of the dangerous drugs had been the purpose of unlawful trafficking.

14. If the summing-up is read as a whole this ground of appeal is without merit.

15. The trial judge carefully took the jury through the requirements which would have to be met before they would be able to deliver a guilty verdict. The jury could only convict if they were satisfied that the possession had been for the purpose of trafficking.

16. A similar position pertains so far as the complaint which is the subject of the 2^nd ground of appeal namely that such a direction had to be given even if the jury were not satisfied on the balance of probabilities that the applicant had rebutted the presumption of possession and knowledge referred to in Section 47 of the Dangerous Drugs Ordinance.

17. It would have been obvious from what the judge did say that the requirement of proving possession and knowledge would have to be established by the prosecution even if the applicant failed to rebut the presumption.

18. There is no reason to suppose that the conviction was in any way unsafe or unsatisfactory.

19. The application for leave is dismissed.