R. v. SIU TIN WAN

IN THE COURT OF APPEAL

1995, No. 718
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He was convicted after a trial before Burrell J and a jury.

2. It is a simple case. According to the prosecution case the police were keeping a Mr Lau Kin Chung - the man referred to in the indictment - under surveillance on the morning of 11 May 1994 at Ki Lung Street, Mongkok. They saw a man in a pink shirt who they came to know was Mr Lau pass to a man in a grey shirt a waist band. It subsequently transpired that the man in the grey shirt was the applicant. Some of the police officers followed Mr Lau while others followed the applicant. One of the officers approached the applicant and after revealing his identity searched the waist band and found the dangerous drugs referred to in the charge. This was 682.25 grams of a mixture containing 220.14 grams of salts of esters of morphine.

3. After the applicant had been taken to the police station he had signed the post recorded statement which had been prepared by Police Constable 49492 which recorded the fact that when the officer had arrested the applicant he had searched the waist band and found the dangerous drugs. The applicant had claimed that the only reason why he had signed this form was because he had been subjected to police brutality in the shape and form of assaults upon his person. A voir dire was held on this issue and Burrell J was satisfied that the evidence should be admitted.

4. It has to be borne in mind that the applicant did not make any admission in the statement that the contents of the statement was true. The prosecution contended that by signing the statement the applicant was admitting the truth of the statements contained in it. There is nothing on the face of the statement to support this contention. However as already indicated the position taken by the applicant at the trial was that he had not voluntarily signed the document. At pages 6 and 7 of the summing-up the Judge put this quite fairly to the jury for their consideration. Later in the summing-up he gave satisfactory directions concerning the requirement of knowledge of the dangerous drugs.

5. The applicant and Mr Lau both gave evidence at the trial. The gist of their evidence was that although the applicant had previously known Mr Lau their meeting on 11 May was a chance encounter. Mr Lau had not passed the dangerous drugs to the applicant. There had been an earlier transaction with Mr Ho one of the police officers who had been assuming the role of an undercover agent. The allegation was made that the officers had deliberately framed the applicant.

6. All of these matters were before the jury. Burrell J gave detailed directions to the jury on the facts and the law applicable and the issue which was before the jury was whether the police officers could be believed at the appropriate level.

7. In his written grounds the applicant claims that he is aggrieved that the prosecutor who had misled the jury. He claimed:

"1. There was a conviction as such.

2. The testimonies given by the prosecution witnesses were inconsistent.

3. The prosecution had insufficient evidence to prove that I took part in drug-dealings. I was accused by the collaborated testimonies given by the prosecution witnesses."

8. Before us he didn't add anything of any substance. This conviction was in no way unsafe or unsatisfactory. The application is dismissed.