HKSAR v. FELIPE N. CASTANEDA

IN THE COURT OF APPEAL

1997, No. 40
(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 a substantial quantity of dangerous drugs. He was convicted of the offence after a trial before Pang J and a jury. He also seeks leave to appeal against the sentence of 18 years' imprisonment imposed upon him for the offence.

2. According to the charge the Applicant trafficked in 990.38 grams of a crystalline solid containing 846.34 grams of methamphetamine hydrochloride which is the chemical description of the dangerous drugs commonly referred to as ICE. The offence occurred outside Shop 1G, Mirador Mansion in Nathan Road on 27 June 1995.

3. It was the prosecution case that the police laid an ambush to capture the Applicant at night. Pang J shortly summarised the evidence of the police officers concerned. The Applicant was first seen by the police officers walking along Mody Road towards Chatham Road. When he came close to the officers, he suddenly started to run. The police shouted at him and told him to stop. He did not do so. He continued to run. He was pursued by the officers.

4. The Judge referred in his summing up to the discrepant evidence given by the officers concerning the route taken by them in pursuing the Applicant. He was assisted in this by referring to a sketch map which had been prepared of the area.

5. The chase appears to have ended when the Applicant slipped and fell outside Shop 1G, Mirador Mansion. According to the officers the Applicant was then pinned to the ground. The Judge also referred to the discrepancies in the police evidence concerning the exact location where the Applicant was apprehended.

6. One of the police officers opened the handbag which had been carried by the Applicant and found what he suspected to be dangerous drugs.

7. According to this officer, he told the Applicant that he was arresting him for trafficking in dangerous drugs and he administered a caution. In response to this the Applicant was alleged to have said "I have a son who is sick in the Philippines. I carry it for money. Please give me a chance." HK$4297 was also found on the Applicant. He was held at the lobby of the Mirador Mansion pending the arrival of transportation to take the Applicant and the officers back to the Tsim Sha Tsui police station.

8. There was some delay at the police station. The reason for this was a post record of the statement alleged to have been made by the Applicant was being prepared and arrangements were made for the attendance of a Filipino interpreter. It was the prosecution case that after the post record was translated to the Applicant he signed it.

9. When the charge was later formally put to the Applicant, he stated that the charge was wrong.

10. The Applicant gave evidence at his trial. He admitted that it was his practice to consume ICE. In this connection he agreed that he had on his own plea admitted to possession of small quantities of ICE and been convicted twice of this. On the evening in question he was joined at his residence by one of his friends Ah Wai. Ah Wai joined him in consuming a small quantity of ICE. He then suggested that they should go to a nearby bar to have a drink. This was agreed to. While they were walking to the bar Ah Wai bent down to apparently tie one of the laces to his shoe. Before doing so he gave the handbag he was carrying to him so he could hold it for him. Ah Wai suddenly started to run leaving him with the bag. He attempted to follow him. It was then he was apprehended by the police officers.

11. He denied ever having made any admissions to the police and alleged physical mistreatment.

12. The explanation he gave for the presence of his signature on the post record statement of his arrest was that he had been assaulted by the police who had insisted that he sign the document. He had not made the statement attributed to him.

13. The Applicant said that some time after he was detained at Lai Chi Kok Remand Centre, the inspector in charge of the case and another officer had visited him and attempted to persuade him to plead guilty to the offence. The inducement offered to him for this was that the police would try to ensure that he received a lenient sentence.

14. The first 3 grounds of appeal can conveniently be considered together. The common complaint made in these grounds is that the Judge did not condescend to sufficient particularity in pinpointing the various contentions being advanced by the defence at trial which might suggest that the police officers had put their heads together to concoct a case against the Applicant.

15. It was also submitted that there was so many inconsistencies and irregularities that the case should have been withdrawn from the Jury. We can see no merit whatever in these grounds. All of the evidence was before the jury. The Judge did sum up the evidence in sufficient detail for them to fully understand the issues which were being canvassed. There was no necessity for the Judge to reiterate the defence submissions.

16. The Applicant obtained leave to introduce an additional ground 3. This ground is framed in this way.

"In the circumstances of this case the standard direction where a defendant has revealed his criminal record to a jury should have been supplemented in 2 respects. Since he had pleaded guilty on both previous occasions and neither offence was an offence of dishonesty, these convictions could not have any adverse impact on his credit. The jury should have been so directed. Secondly the jury should have been told that the convictions were put forward to support the defence case that he was precisely the sort of victim (small time user or addict) who would be more likely to be framed by the police or by Ah Wai or by some combination of the two. Such "frame ups" are more common amongst those who have some involvement in the drugs world than those of unblemished character. That, and the fact that at least two members of the police team had arrested him previously were the only relevant aspects of his previous convictions. It was a misdirection to suggest that the convictions could have any bearing on the applicant's credibility."

17. No complaint can justifiably be made that the Judge did not make it clear to the jury that they should not assume that the Applicant had a propensity for this type of offence or that should not be regarded as being a credible witness as he had pleaded guilty to the 2 relatively minor offences of possession of dangerous drugs.

18. The problem which arises is the extent to which the Judge should have attempted to explain to the jury the reasons why the Applicant had considered it to be necessary for him to reveal his previous record.

19. The Judge is placed in a somewhat invidious situation here as any explanation by him may well involve a degree of speculation.

20. Certainly the fact that the Applicant had said that he had recognised one of the officers who had been involved in one of his previous offences when he had left the building would have been germane to the issue.

21. The defence was clearly alleging a police frame up and it might be the case that it would be helpful to disclose to the jury that he had been in trouble with the police before.

22. Mr. Haynes's suggestion that this was the sort of case where the police might attempt to frame up a person is altogether more speculative.

23. Looking at the summing up as a whole it is possible to say that the Judge could have attempted to provide more in the way of the explanation than he did. However the Judge did put forward the defence case with sufficient particularity to enable the jury to be properly seized the matter.

24. Grounds 4 and 5 can also conveniently be dealt with together.

25. Mr. Haynes refers to one of the police officers having admitted under cross-examination that he had failed to draw the Applicant's attention to the fact that he could request the presence of a lawyer. This would have been a breach of the rules governing the situation. However, the mere fact that there has been a breach of the rules is not in anyway conclusive. This was a matter which was properly before the jury.

26. A similar observation can be made concerning the visit by the police officers to the Applicant at Lai Chi Kok. The jury would have been able to fully take cognizance of the officers inability to recollect much concerning the visit and no doubt this would have been one of the many matters they would have weighed in their deliberations.

27. It is true that there were some loose ends which were not satisfactorily resolved. However all of this needs to be considered in the context that there was evidence that the Applicant had in effect admitted the offence.

28. This conviction was not in any way unsafe or unsatisfactory. This application is dismissed.

29. The Applicant complains that the sentence of 18 years' imprisonment was excessive. He also refers to the difficult family circumstances he encountered as a result of his imprisonment. Unfortunately, this is not a fact to which can be weighed very heavily in the balance.

30. Having regard to the quantity of ICE, the subject matter of the charge the sentence was within the guidelines laid down.

31. This being the case the sentence imposed was neither manifestly excessive nor wrong in principle and this application is also dismissed.