R. v. CHAN KWOK KEI

IN THE COURT OF APPEAL

No. 324 of 1995

(Criminal)

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J U D G M E N T

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Keith J. (giving the judgment of the Court) :

1. On 28th April 1995, the Applicant was convicted by Judge Chua in the District Court of trafficking in a dangerous drug. He had pleaded not guilty. He was sentenced to six years' imprisonment. He now applies for leave to appeal against his conviction.

2. The Applicant had been arrested on 20th January 1995 in the course of an investigation unconnected with the offence for which he was eventually tried by Judge Chua. He was taken to Upper Levels Police Station. He was interviewed about his whereabouts at a particular time and where he lived. He gave the police officers who interviewed him two addresses, and he agreed to one of those addresses being searched. That was a flat in Pau Chung Street, Kowloon. He took the police there himself. It was agreed that he had been living there since the middle of the previous November, as indeed had others.

3. There was no one in the flat at the time, but in a box in the sitting-room the police found 8 small transparent bags containing what was subsequently analyzed to be 195.42 gms. of a mixture containing 35.19 gms. of heroin. In addition to the heroin, the police found in the flat a number of other small transparent bags. 28 of them were found in a bag in the sitting-room, and 510 of them were found in a red plastic bag in the kitchen. The three sets of plastic bags - the 8 with the heroin, the 28 in the sitting-room and the 510 in the kitchen - were all of different sizes.

4. There were two issues which the judge had to decide :

(1) Was the Applicant in possession of the heroin found in the flat?

(2) If so, did he have the heroin in his possession for the purpose of trafficking in it?

5. Some evidence linking the Applicant to the 8 bags of heroin came from PW2, who was one of the two people who had rented the flat and had allowed the Applicant to live there. His evidence was that a few days before 20th January, the Applicant had arrived at the flat carrying a red plastic bag similar to the one found in the kitchen which contained the 510 small transparent bags, and that the Applicant had told him that a friend had asked him to keep something in the flat for him. However, it was what the Applicant was alleged to have told the police which the judge described as the "crucial" evidence linking him to the heroin. The evidence of the two relevant police officers was that when they found the heroin, they asked the Applicant what it was. He said that it was white powder, and that he knew that they, i.e. the 8 bags, were dangerous drugs. On being told that he was being arrested and on being cautioned, the Applicant is alleged to have said :

"Ah Sir, the others have nothing to do with this. I myself took these dangerous drugs for consumption."

Although the Applicant did not give evidence, his case as put to the officers in cross-examination was that he had never said what the officers claimed he said.

6. It is important to note that no issue arose as to the admissibility of the officers' evidence as to the admissions by the Applicant. The issue was simply whether or not the Applicant had said what they attributed to him. The principal reason on which the judge was being invited to reject their evidence was that the police officers were lying when they denied that they had beaten the Applicant up before he was taken to the flat. The evidence which suggested that they might have beaten him up was that of a hospital doctor, who had examined the Applicant on 22nd January, and who had found very fresh contusions on the Applicant's chest, back, head and wrist, caused "probably within one day".

7. The point taken by Miss Caroline Ravenscroft for the Applicant, who has argued this appeal with care and moderation, relates to the way in which the judge expressed herself in her Reasons for Verdict. What the judge said was this :

"Even if it was possible to surmise from these injuries that the defendant was assaulted on the 20th of January, without evidence from the defendant, there is no evidence that these injuries were caused by [the police officers]."

Miss Ravenscroft complains that since the Applicant elected not to give evidence, the judge gave no weight to the evidence of the doctor, and as a result she never properly evaluated the impact of the doctor's evidence on that of the police officers. That is borne out, says Miss Ravenscroft, by the statement of the judge that the Applicant's counsel "insisted" on calling the doctor. We disagree. All that the judge was doing was saying that since the Applicant did not give evidence, there was no direct evidence that he had been assaulted by the police officers. That does not begin to mean that the judge did not evaluate the evidence of the police officers. The key to what the judge meant is what she went on to say :

"The doctor's findings has not caused me to doubt the veracity of the officers' testimony."

We read that as meaning that even if the doctor's findings had entitled her to infer that the police officers might have assaulted the Applicant, and that their denials might therefore have been untrue, nevertheless she still accepted the truthfulness of the officers' evidence relating to the admissions. There would be nothing odd about that. It is always open to a judge to find that a witness has been telling the truth in one part of his evidence, even though he was lying in another part. Indeed, it would have been open to the judge to conclude that if the police officers had wished to frame the Applicant on a charge of trafficking in the heroin, the admissions which they might have been tempted to attribute to him would not have been limited to possession of the heroin for his own use.

8. Miss Ravenscroft also complains that the judge gave insufficient weight to the facts that it was the Applicant who told the police about the flat in Pau Chung Street, that he was willing to take the police there, and that the box containing the heroin was not hidden. All of that, says Miss Ravenscroft, points to the Applicant's innocence. However, the weight to be attached to the evidence was entirely a matter for the judge. Her Reasons for Verdict show that she was alive to the fact that, but for the information which the Applicant volunteered as to where he lived, the police would not have known about the flat in Pau Chung Street. The judge referred to the fact that, in order to establish his alibi for the offences which the police were investigating, he had agreed to take the police to the flat. Although the judge did not say so in terms, she would have been entitled to conclude, as Ching J.A. pointed out in the course of argument, that even though the Applicant knew that the police might discover the heroin in the flat, that was better than continuing to be a suspect in connection with the serious crimes which the police were investigating.

9. Finally, Miss Ravenscroft referred to a number of other features of the evidence which went to the issue as to whether the 8 bags of heroin were indeed in the Applicant's possession : the fact that so many other people had access to the flat, the fact that the box in which the heroin was found was itself found amongst the possessions of other people, and the evidence of who had been in the flat recently. Again, these were all matters for the judge to weigh up, but they had to be seen against the admissions which the Applicant is alleged to have made. The simple fact is that the judge saw and heard the two police officers give evidence. She was in the best position to decide whether, on the crucial issue as to whether the Applicant had made the admissions attributed to him, the police officers were telling her the truth. There is no basis upon which we can interfere with her findings of fact on that issue, and it follows that the judge's conclusion that the heroin was in the Applicant's possession cannot be criticized.

10. The admissions which the Applicant made to the police were not merely that the heroin was his. He claimed that it was for his own use. By convicting the Applicant of trafficking, the judge could not have believed that his admissions to the police set out the whole story. Accordingly, when the judge said that the Applicant's answers to the police were made spontaneously to absolve his friends from responsibility for the heroin, she could only have been referring to his admission that the heroin was his, not that it was for his own use.

11. The evidence on which the judge relied to convict the Applicant of trafficking in the heroin was that of PW2 about the red plastic bag which linked the Applicant to the other small transparent bags in the flat. However, having looked at the photographs, this was not a particularly distinctive plastic bag of the kind sold only by a few retail outlets. It was a plastic bag of the most common kind. By itself, we would not have felt able to sustain the conviction for trafficking on the basis of that linkage alone.

12. However, the judge would have been entitled to take judicial notice of the fact that the average consumption of a heroin addict is between 0.25 and 0.7 gms. of pure heroin a day : see Cheung Ping Chiu (CA 162/93). It would therefore have been open to the judge to conclude that, having regard to the quantity of the heroin in the Applicant's possession, it could not have been in his possession for his own consumption. That is especially so when one remembers that there was no evidence that the Applicant was a heroin addict. As was said in Chong Kin Cheong (CA 196/95) :

"Absent him being an addict, he must have been trafficking."

In our judgment, the only basis on which the Applicant could have been in possession of heroin of this quantity was because he was trafficking in it, and we draw some comfort for that view from the evidence, tenuous though it was, of the link between the Applicant and the other small transparent bags in the flat.

13. For these reasons, the judge's conclusion that the Applicant was in possession of this heroin for the purpose of trafficking is one which in our view cannot be faulted, and this application for leave to appeal against conviction must therefore be refused.