R. v. LEE KUEN HUNG

IN THE COURT OF APPEAL

1992 No. 121
(Criminal)

____________

_______________

J U D G M E N T

_______________

Hon Yang, CJ:

1. The Appellant LEE Kuen-hung ("Lee") was convicted after trial by His Honour Judge Hawkes of possession of a dangerous drug for the purpose of unlawful trafficking. He was sentenced to a term of imprisonment of three years. This is his appeal against conviction.

2. Originally he was charged together with one TSANG Ho-moon. This man had committed suicide about two months prior to the commencement of the trial. The trial proceeded with Lee as the sole accused.

3. The case for the prosecution is straightforward. On the evening of 9 July 1991, PC 45327 and two other police officers were inside a taxi parked near the junction of Tung Lo Wan Road and Leighton Road, Causeway Bay. There were three other police officers in another taxi on the other side of the road. At about 10:30 p.m., another taxi, bearing registration number EB 2963, stopped at the junction about 60 metres away from the first taxi. Using a pair of binoculars, PC 45327 observed two persons in taxi EB 2963, i.e., the driver, and a passenger sitting in the rear seat. A man in a black T-shirt and blue jeans then approached that taxi and handed a wad of money to the passenger, who in turn gave the man a white packet. The taxi then moved off while the man in the black T-shirt walked to Leighton Road. It was conceded by defence counsel at the trial that it was a drug transaction.

4. PC 45327's taxi followed taxi EB 2963, intercepting it in Tsing Fung Street, North Point. PC 45327 apprehended the rear seat passenger after a brief struggle. The name of this passenger was TSANG Ho-moon.

5. PC 21908, who was one of the three police officers in the second taxi, went up to the driver's door of taxi EB 2963. He saw Lee sitting on the driver's seat. PC 21908 showed Lee his warrant card, whereupon Lee swept a cash box, which was on the seat beside him, onto the floor of the taxi. PC 21908 said that, although he was not sure, he believed that the cash box had been covered by a towel. The officer then retrieved the cash box from the floor of the taxi. Some coins were found in the cash box but a number had spilled onto the floor. Inside the cash box were five polythene packets containing suspected dangerous drugs. Altogether the officer found $30.80 in coins. The polythene packets were later found to contain 67.60 grammes of a mixture containing 31.59 grammes of salts of esters of morphine.

6. Lee gave evidence. In short, what he said was that he stopped his taxi at the road junction of Tung Lo Wan Road and Leighton Road at the request of his passenger, that he did not know that transpired between the man in the T-shirt and his passenger, that he did not deliberately knock the cash box beside him onto the floor, and that he knew nothing about the five packets of dangerous drugs.

7. Under cross-examination he gave evidence of his alleged dealings with a loan shark, which has now been made the subject matter of a ground of appeal. I shall return to this issue below.

8. In the end the learned judge did not believe Lee. He also completely disregarded the suggestions and evidence in cross-examination relating to the loan shark. He was satisfied that PC 45327 did witness a dangerous drug transaction between the man in the T-shirt and Lee's passenger, and that PC 21908 did see Lee deliberately knock the cash box onto the floor of the taxi. In conclusion the judge found that Lee knew the five packets contained a dangerous drug, and Lee knew full well that his passenger TSANG Ho-moon was trafficking in dangerous drugs and Lee knowingly helped him in so doing.

9. The suggestions in the cross-examination of Lee relating to a loan shark forms the subject matter of Ground 3 of this appeal. The complaint here on Lee's behalf is that defence counsel was completely taken by surprise as he was not made aware of the allegation until after the close of the prosecution case. It was said that defence counsel was in the circumstances unable to properly represent Lee, that this was evidence of Lee's character, the probative value of which was minimal and prejudicial effect very high. Though the judge directed himself to completely disregard the evidence on loan shark, he could "hardly dissipate the effect of listening to the prejudicial account". It should be noted that Lee's good character was never in issue.

10. At the trial prosecuting counsel, in the course of cross-examining Lee, disclosed that he was about to ask Lee regarding the loan shark. Having heard defence counsel's objection and prosecuting counsel's argument, the judge allowed the cross-examination. The gist of Lee's evidence on this point was simply that he knew the man in court as a loan shark to whom he had owed $5,000 in July 1991. He denied that the loan shark forced him to traffic in dangerous drugs to help repay his debts. As has been noted, the trial judge disregarded the evidence.

11. The first ground of appeal is that the judge erred in making the findings of fact against Lee as he did. The second ground is that the judge failed to exclude the opinion evidence of PC 21908 on the question of Lee's state of mind, i.e., whether Lee deliberately swept the cash box onto the floor of his taxi, and also the judge's mind was influenced by this prejudicial evidence when he found that Lee was knowingly in possession of the five packets of dangerous drugs.

12. We had the advantage of being supplied with copies

of skeleton arguments by Lee's counsel before the hearing of the appeal. We do not think it necessary to repeat those arguments here. In our judgment, the Magistrate was perfectly entitled on the evidence before him to come to the conclusion that he did, using his common sense as a judge of fact. Nothing that has been argued on behalf of the Appellant at this hearing leads us to the conclusion that the learned judge might have erred in the way suggested. The appeal against conviction is accordingly dismissed.