HKSAR v. LEUNG KWOK HUNG

1997, No.372
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

______________

______________

______________

J U D G M E N T

______________

Pang, J. (delivering the judgment of the Court) :

1. This is the judgment of this Court.

2. The Appellant Leung Kwok Hung was convicted after trial of one count of trafficking in dangerous drugs contrary to s.4(1) of the Dangerous Drugs Ordinance, Cap.134. The drugs in question are respectively 23.21 grammes of heroin hydrochloride and 0.157 grammes of "ice".

3. There are four points raised in the Appellant's home-made grounds of appeal. At the hearing, however, he elected not to pursue those grounds. He was invited to advance any further grounds if he so wished and this he did. In summary, his complaint is that the learned Deputy District Judge had not properly evaluated the evidence before him. The four areas of the evidence which the Appellant had highlighted before us are : the learned Deputy District Judge failed to take into account how apartment houses were operated; he failed to take proper regard of the difference of the wholesale value as opposed to the retail value of the drugs in question; the fact that no drug packaging paraphernalia were found inside the cubicle in which he resided and that he was a drug addict and the drugs were brought earlier for his own consumption.

4. Briefly, the prosecution case was that in the evening of 16 January this year, a team of police officers intercepted the Appellant as he was coming down the flight of stairs from an apartment house in Nanking Street in Yaumatei. Upon searching the Appellant, the drugs forming the subject matter of the charge were recovered from his trousers pocket. There is evidence from the police officer that under caution the Appellant admitted to the officer that the white powder was for his own consumption. A search was subsequently conducted in the apartment cubicle which he resided and nothing suspicious was found. It was also submitted by the Appellant that the Deputy District Judge failed to take into account the absence of communication facilities for trafficking such as a cellular phone or a pager.

5. The Appellant elected to give evidence at the trial and he told the court that he had purchased the drugs earlier from one "Ah Shing" at Temple Street for $6,000 and they were intended for his own consumption. He was on his way back to the Nanking Villa where he resided with his girlfriend when he was intercepted by the police. There is undisputed evidence before the Court that the street value of the drugs in question was in excess of $23,000.

6. The learned Deputy District Judge accepted the evidence of the police officers and rejected the explanation advanced by the Appellant that the drugs were for his own consumption. The judge was of course in the best position to observe the demeanor of the witnesses, including that of the Appellant, when they gave evidence and we see no reason here to disturb his findings on the credibility of the witnesses.

7. Based on the evidence before him, the Deputy District Judge inferred that the drugs in question were for the purpose of trafficking and convicted the Appellant of the charge. This is what he said at page 8 of his Reasons for Verdict :

"... In my view on the totality of the evidence of the Defendant being in possession of 2 kinds of drugs, the quantity of the heroin and was leaving the building rather than returning to it, I am prepared to infer that he had the drugs for the purpose of trafficking. ..."

In so doing, the learned judge had considered all the evidence before him and had properly reminded himself of the law regarding the drawing of inferences in cases where there is no direct evidence of trafficking activities.

8. We find that the conviction is neither unsafe nor unsatisfactory and we do not see any merits in the appeal against conviction.

9. The Appellant was sentenced to six years' imprisonment. The learned Deputy District Judge referred to the guidelines laid down in R v. Lau Tak Ming [1990] HKLR 370 and adopted a starting point of 6 1/2 years and reducing it to six years after considering the mitigating factors. The sentence of a six-year term, in our view, is neither manifestly excessive nor wrong in principle.

10. There is however one other point which was taken by the Appellant who, we were informed, was subsequently sentenced to a term of 2 1/2 years in relation to another drug related offence so that he is now serving a total sentence of 8 1/2 years' imprisonment. It is our view that if the Appellant is in anyway aggrieved by the subsequent sentence, he is perfectly entitled to take out appeal proceedings in respect of that sentence.