THE QUEEN v. WONG KWOK FAI

IN THE COURT OF APPEAL

1987, No. 115
(Criminal)

_______________

_______________

J U D G M E N T

_______________

Cons, V.-P. delivered the judgment or the Court:

1. This is an application for leave to appeal against the decision of His Honour Judge Evans in the Kowloon District Court on the 20th February whereby he convicted the Applicant (“the Defendant”) of one count of possession of dangerous drugs for the purpose of trafficking and sentenced him to a term of four years' imprisonment.

2. The evidence against the Defendant was that of two police constables. They said that on the 19th October last year they were on patrol in the Diamond Hill area. At 9.43 in the evening they saw the Defendant. His manner aroused their suspicion and they decided to search him. The first constable therefore hurried after the first Defendant who by that time had turned into a side street. The second constable went round another way so that he would, if necessary, be able to cut off the Defendant.

3. The first constable managed to intercept the Defendant and asked for his identity card. Being satisfied with that he announced that he was going to search the Defendant, at which the Defendant snatched his card back and ran away along the side street. However he was caught by the second constable coming the other way, who had been attracted by the shouts of the first constable.

4. A search of the Defendant revealed a brown paper bag concealed beneath the blue jeans which he was wearing. The contents were later found to be some 90 odd grammes of what is commonly called heroin. That was proved by evidence which has no place in this appeal.

5. The Defendant gave evidence at the trial. He said that he had been out to a restaurant in order to purchase noodles to take home to eat while watching television and that the noodles were contained in a brown paper bag which he was carrying. As he left the restaurant he saw the first constable searching a man but carried on walking home. He was then caught up by the first constable who checked his identity card, searched him, found the noodles and then released him. He said that when he got into the side street he saw the second constable searching another man. As he walked past the constable he was asked what was in his bag, and having told the constable, the constable demanded to see his identity card. A reply by the Defendant that he had already showed it to the first constable led to a dispute with the second constable; and then to a suggestion from the first constable, who had by that time arrived, that the Defendant was obstructing his colleague. The effect of the Defendant's further evidence was that the police therefore framed him with a bag of drugs which they picked up from the ground nearby, presumably the suggestion being that it had been dropped by the man whom the second constable had been searching but who by that time had been released.

6. The cross-examination of the constables elicited confirmation from them that they had performed two other searches just before that of the Defendant. Their evidence was not entirely in agreement with that of the Defendant, for the effect of their evidence was that both constables had been present in both searches, and the Defendant placed the second search to an area slightly different from that which the constable admitted. The time of the first search is recorded in both constables notebooks as 9.37. The second search is recorded only in the notebook of the second constable, being put at 9.40.

7. The judge reserved his decision and in the reasons that he later gave for his decision to convict, he said that he believed both constables, did not believe the Defendant and had not been impressed by his manner in the witness-box.

8. The sole ground of appeal put forward is that unless the Defendant had actually seen the two constables making the searches he could not possibly have known about them; therefore he was to that extent telling the truth and if that be so, he would not have been so foolish as to go past the police constables with the knowledge that he himself was carrying a fair amount of heroin.

9. It may be that the Defendant was indeed telling the truth as to his observation of the searches, but we are unable to see where that takes this application. It does not necessarily follow that the Defendant was not guilty.

10. The same point had been made to the judge below who felt that it was not of sufficient force to make him doubt the word of the officers. The argument before us is extended to cover the wording with which the judge referred to that contention, (page 6 of the record and page 4 of his judgment,) which, it is suggested, indicated that the judge did not properly consider the implications of the Defendant's evidence. With respect we do not agree. We see no merit in the application for leave to appeal against conviction and it is refused.

11. The sentence of four years is well within the recommended bracket laid down by this Court for possession of a mixture to the amount of which the Defendant was in possession. We see no reason to interfere with the sentence which the judge imposed. That application is likewise dismissed.