R. v. LEUNG HUNG CHEONG

IN THE COURT OF APPEAL

1995, No. 816
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against conviction. The applicant was convicted on one charge of trafficking in dangerous drugs by H.H. Judge Kilgour in the District Court on 28 November 1995 and sentenced to five years' imprisonment.

2. The charge alleged that on 5 November 1994 at King Yip Street near Hung To Road, Kwun Tong the applicant unlawfully trafficked in dangerous drugs namely 108.93 grammes of a mixture containing 26.68 grammes of heroin hydrochloride.

3. The facts found by the trial judge are simple. At about 9pm on 5 November 1994 two police officers were on duty in the vicinity of King Yip Street, Kwun Tong. At about 9pm they saw a taxi approach with four passengers on board. The taxi stopped nearby and the applicant got out and walked towards the Fu Sze Restaurant on Hung To Road. The applicant remained outside the restaurant. The taxi did not move away. It appeared to the two officers to have been waiting for the applicant. The two officers approached the applicant and searched him. They found a polythene bag in his left denim jacket pocket. Inside the bag were four packets wrapped in paper. They contained the heroin as averred in the charge.

4. When arrested the applicant was cautioned as to his right of silence whereupon he said as follows: "Ah Sir, give me a chance, I have never smoked dangerous drugs. I am made use of by someone this time. Ah Sir, I hope you would give me a chance." This was later recorded in a written statement in the Kwun Tong Police Station which the applicant signed as correct. When questioned further in the police station the applicant said that a person called Ah Keung had asked him to take the white powder to the outside of Fu Sze Restaurant to be handed over to someone there. He said he knew it was white powder and was helping Ah Keung to deliver the white powder for $700.

5. At his trial the applicant testified both as to the question of the admissibility of the statements and as to the general issue. His evidence was rejected by the judge. His defence was to the effect that the drugs had been dropped by someone else in the vicinity and had nothing to do with him. The judge inferred from all the circumstances of the case that the applicant was not simply in possession of the drugs but was trafficking in them.

6. In his grounds of appeal the applicant questioned the soundness of the conviction by asking why the taxi driver had not been arrested. There is no merit in this point. In fact, in his own defence, he had put forward the point that the drugs had nothing to do with him; it is difficult to see why, if that defence be meritorious, the driver of the taxi should have been stopped by the police. He also adverted to the fact that no finger-prints were found on the exhibit. Nothing suggests that finger-prints must necessarily have been found.

7. The fact was that the testimony of the two police officers was believed by the judge. The circumstances of the offence were clearly established. The applicant made a clear admission to having been in possession of the dangerous drugs, knowing them to have been dangerous drugs. There is no merit in this appeal and the application must be dismissed.

8. In dismissing it we direct under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 that two months of the time spent in custody pending the hearing of the appeal shall not be reckoned as part of the term of imprisonment of five years.