HKSAR v. LAI KWOK KEUNG

[English Translation – 英譯本]
CACC 250/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 250 OF 2015

(ON APPEAL FROM HCCC 60/2014)

_______________

_______________

JUDGMENT

1.  The applicant was found guilty unanimously by a jury after trial before the High Court on one count of trafficking in a dangerous drug. He was sentenced to a term of imprisonment of 8 years and one month on 16 July 2015. On 29 July 2015, he applied for leave to appeal against conviction and sentence. The application has been scheduled to be heard on 31 August 2016.

2.  The applicant made the present application for bail pending appeal on 18 May 2016. This is the fourth application of its kind that he has made. The previous three applications were all made with him acting in person and were rejected by the court on 13 November 2015, 7 January and 2 March 2016 respectively.

3.  He was granted legal aid on 9 November 2015 to pursue his application for leave to appeal. His legal representative filed the perfected grounds of appeal on 17 May 2016. He was granted legal aid to apply for bail on 26 April 2016.

4.  In support of this application, the ground the applicant advanced is that the perfected grounds of appeal that he has recently filed stand a high chance of success.

5.  The prosecution called 14 witnesses during the trial. Put simply, the prosecution evidence alleged that at around 10:30pm on 2 October 2013, the police conducted investigation on a Mercedes Benz private car parked at a vehicle passing bay at Fuk Wah Street, Shamshuipo. The applicant at that time was sitting on the driver’s seat. Between his legs on the driver’s seat, the police found a red plastic bag inside of which was a transparent re-sealable plastic bag that contained the 26.69 grammes of dangerous drug, ice, particularized in the charge. The said dangerous drug had a street value of over $18,000. The applicant was arrested. Under caution, he said, ‘Ah Sir, I bought the packet of “ice” for $5,000 for my own consumption only. Give (me) a chance.’ The police then searched the private car and collected evidence at the scene. In the meantime, a police constable post-recorded the statement made under caution in his notebook. The applicant wrote down a declaration and signed on it after reading it.

6.  The applicant elected not to testify. He called 7 witnesses including an optometrist who testified as an expert witness. Overall speaking, their evidence was that the applicant had proper jobs, including engaging in the business of buying and selling diamonds; his car had a dashboard camera installed on it and that he made a complaint to the Complaint Against Police Office after his release on bail. The optometrist testified that the applicant was far-sighted and suffered from astigmatism, and when trying to read without glasses, the writing of the post-record the police constable made in his notebook would have been too small for him to read.

7.  The main complaint the applicant made in his perfected grounds of appeal was against the summing up of the trial judge in directing the jury. He argued that not only was it biased, the judge also improperly criticized the applicant for not testifying and tried to shield the fault of the prosecution witnesses.

8.  The respondent opposed the present application for bail. It does not agree that his appeal stands a very high chance of success.

9.  I agree that the perfected grounds of appeal drafted by the legal representative of the applicant are not the same as the grounds of appeal the applicant himself compiled. They had not been taken into consideration by the court when it dealt with his three earlier applications.

10.  Having carefully considered these perfected grounds of appeal and the appeal bundle, including the summing up of the trial judge when directing the jury and the transcript produced from the audio recordings of the evidence of the defence witnesses, I agree that the grounds of appeal are by no means weak.

11.  However, I must also consider that in the event that the Court of Appeal later allows the appeal and overturns the guilty verdict, an order for retrial will very likely be made. The applicant is facing a very serious charge. Should he be found guilty, he will be sentenced to a very long term of imprisonment.

12.  It is true that as Mr Yuen, counsel for the applicant pointed out, the applicant was originally granted bail pending trial, but at that time, the full extent of evidence of the prosecution and the defence had yet to be disclosed. The situation then was very different from the situation now.

13.  In view of all the circumstances of this case, I take the view that the applicant should not be given bail at the present stage pending appeal. Should the Court of Appeal later allow the appeal and order a retrial, it will revisit the issue of whether or not the applicant should be granted bail pending trial. I reject the applicant’s application for bail.