R. v. KWOK SING

IN THE COURT OF APPEAL

1996, No. 80
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant was convicted on 4 January 1996 after trial in the District Court before HH Judge Surman on one charge of trafficking in dangerous drugs and was sentenced to five years' imprisonment. The amount of drugs involved was 149.05 grammes of a mixture containing 24.9 grammes of heroin hydrochloride.

3. The prosecution case against the applicant was this. On the evening of 22 May 1995 a party of police officers in plain clothes was on patrol in Kwun Wong House, On Ning Road, Yuen Long. They were on the lookout for burglars and thieves. They had walked down from the 16/F to the 10/F when at about 10pm, they came across the applicant and another man in the lift lobby. Each was holding a black bag. They were stopped by the police. The applicant was questioned by PC 47255 CHENG Kam-hung and his bag was searched. In the bag were found banknotes totalling $25,360. When the applicant was asked what the money was for, he gave no reply. When he was searched, the police officer found two packets in his right trouser pocket, each containing six smaller packets of white powder. This was the heroin hydrochloride covered in the charge. When asked what exactly those packets were, the applicant at first made no reply and then when pressed, said "Ah Sir, you know that it's white powder."

4. The police constable then told the applicant he was under arrest and cautioned him whereupon the applicant said: "Ah Sir, the things are not mine. I just helped someone to 'tor' the things." The Cantonese word 'tor' was understood by the police officer to mean to transport.

5. The applicant was then brought back to the Yuen Long Police Station where, at about 11.30pm, what had occurred in the lift lobby was then recorded in the police officer's notebook. The police officer interviewed the applicant and then wrote:

"The statement from page 28 to page 35 was taken inside Report Room of Yuen Long Station between 11.30 p.m. on 22.5.1995 and 12.30 a.m. on 23.5.1955. You can make any alterations, corrections or additions you wish."

6. This was then signed by the applicant.

7. The police officer then wrote these words:

"I have read this statement and I have been told that I can amend, correct or add anything I wish. This statement is true. I have made it of my own free will."

8. And this was also signed by the applicant.

9. There were six police officers altogether in the police party. They all testified as to what had taken place in the lift lobby on the 10/F of Kwun Wong House.

10. The defendant's version of events was to this effect. He said he lived on the 16/F with his girlfriend Miss Lau. On the evening in question he and Miss Lau had entered the lift on the 16/F with two Chinese males. When the lift stopped at the 10/F the doors opened and he was pushed out of the lift by one of the two males and then arrested by the police. The lift continued down, carrying Miss Lau to the ground floor.

11. He accepts that he had the bag with him. He told the District Judge that the cash found in the bag consisted of receipts from book-making, but produced no accounts to substantiate that assertion. He denied having the drugs on him.

12. He accepts that the signatures in the police officers notebook were his but claims to have simply signed where he was told.

13. The amount of heroin hydrochloride found on the applicant nearly -25 grammes of active ingredient contained in 12 separate packets - was considerable. The street value was $37,000.

14. On the prosecution case, there was certainly enough evidence to convict the applicant of trafficking.

15. The judge had made a careful evaluation of the evidence as a whole, and accepted the prosecution case. What room is there then for suggesting that the verdict is unsafe and unsatisfactory?

16. Criticism is made by counsel of the fact that the police constable did not record what was said by the applicant immediately, in the lobby of the 10/F. But, as can be appreciated, the applicant was with another man at that time and the inquiries made by the police at the beginning were routine inquiries. It was not until the packets were found in the applicant's trouser pocket that he came under suspicion of trafficking in dangerous drugs.

17. In these circumstances, to suggest that the police officer should have contemporaneously recorded everything being said in his notebook in the course of inquiry is unrealistic.

18. It is also said that, at the police station, the record of interview should have been made on a statement form rather than in the notebook. Technically that is correct. But how the applicant has been prejudiced by that fact has not been explained.

19. As mentioned earlier, the cumulative effect of the evidence pointed heavily to guilt. Quite apart from the quantity of drugs found on the applicant and the way they were packaged, there were the banknotes in the bag which were unexplained. Counsel says that the applicant was entitled to offer no explanation to the police. So be it. When, later on, the applicant went along and told the judge in court that the money was the proceeds of book-making, the judge was perfectly entitled to treat that explanation with some scepticism.

20. No arguable grounds of appeal have been put forward and the application is dismissed.