THE QUEEN v. NG LAI MAN

1988, No. 94

(Criminal)

IN THE COURT OF APPEAL

HONG KONG

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J U D G M E N T

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Liu, J.

1. The applicant, together with two co-defendants, was charged with and convicted after trial of possession of a dangerous drug for the purpose of unlawful trafficking. The other two defendants pleaded guilty. The applicant, being the 3rd defendant, contested the charge before the trial judge.

2. He now seeks leave to appeal against his conviction. The prosecution produced a summary of facts which was agreed by the applicant through his legal adviser. The applicant himself applicant himself elected to and did give evidence. One of his co-defendants, the 2nd defendant Shiu, was called as a witness. On the agreed facts and the evidence of the applicant and his co-defendant, the judge found the applicant guilty as charged.

3. It is necessary to mention that the legal adviser for the applicant agreed that there was only one issue before the Trial Court and that was whether the applicant had knowledge of the dangerous drugs. The amount of drugs involved was 199.01 grammes of a mixture containing 26.34 grammes of salts of ester of morphine. 21 packets of drugs were retrieved in the police raid. The question of unlawful trafficking was not really a live issue.

4. My Lord the Vice President has drawn the attention of the applicant to his grounds of appeal and they are as follows: the trial judge wrongly believed, so he claims, that it was impossible that the applicant was unaware of the 2nd defendant's possession of dangerous drugs. The applicant also maintains that the 2nd defendant, Shiu, had testified to his innocence, but that the trial judge wrongly concluded that it was a case of a friend trying to help a friend. According, to the 2nd defendant Shiu, the applicant did not seem to have denied his alleged involvement to the police. The applicant complains that the judge placed reliance on this evidence in concluding that he was guilty of the offence.

5. The facts, as agreed, are straightforward. On the 17th September 1985 at about 2:30 a.m., a party of police kept the 1st floor, No. 53 Tai Ho Road, Tsuen Wan under surveillance. Shortly thereafter; at about 3.05 am, the 2nd defendant, Shiu, was seen leaving those premises. On being challenged by the police, he went back, closed the door and shouted a warning to the occupants inside the premises. The police had to force open the door. The 1st defendant as well as the applicant were found in a room in the premises. The applicant was seen by the police party to be holding a box close to the window. He looked as if he were dropping something into the street.

6. There was a police constable, PC 6171, who was positioned below that window outside the premises. He saw five packets thrown out of the window and he retrieved them. Inside the room the other 16 packets were found.

7. One Mr Chong, according to the agreed summary of facts, identified the applicant as the tenant of the room in question. He also identified the 2nd defendant, Shiu, as a person living, in the same room. The other co-defendant, the 1st defendant, was identified by Mr Chong to be a frequent visitor.

8. The 3rd defendant admitted at his trial that he was a drug addict. He told the judge that he had not seen the box before. He claimed that it was the 1st defendant who had handed him the box during the police raid and had requested him to drop its contents out of the window. It was also testified by the applicant before the trial judge that the 1st defendant told him that if he did not do so he "would not be able to clear himself of the matter".

9. The 2nd defendant, Shiu, also gave evidence. He agreed that he and the applicant were both drug addicts and that both of them had taken dangerous drugs in the room before. He told the trial judge the applicant had no knowledge of possession of the drugs in question on the day when the police raided the premises. He added that the applicant had in fact fallen asleep. It was he, he claimed, who instructed the 1st defendant, Chung, to ask the applicant to throw the contents of the box out of the window in case of any police raid.

10. In the light of the evidence regarding the quantity of the dangerous drugs and the number of packets found during the raid, statutory presumptions as to possession and knowledge arose at the trial against the applicant. The trial judge considered the evidence of the applicant and his co-defendant with care. It was fundamentally a question of credibility. The trial judge observed that the applicant's evidence was brief and he seemed to say as little as he could. He concluded that the applicant was not reliable. He considered that the" 2nd defendant, Shiu, seemed to be over-cautious in his evidence, and he noted in his Reasons for Verdict that the 2nd defendant Shiu at one stage seemed to be repeating questions before attempting to answer them. Neither in the Record of Proceedings nor in the Reasons for Verdict are we able to find anything that would suggest that the judge drew any conclusion adverse to the applicant on account of his silence after the police entered the premises.

11. It is not difficult to understand why the trial judge came to the conclusion that the statutory presumptions against the applicant had not been rebutted. The learned judge specifically reconsidered the matter before he reached the conclusion that he was sure and satisfied beyond reasonable doubt that the applicant was guilty as charged.

12. This Court has gone through the entire record and the Reasons for Verdict. We take the view that in no way could the conclusion of the trial judge be faulted. We are not able to accept that any of the grounds advanced by the applicant in this application has any substance. The application for leave to appeal against conviction is therefore dismissed.