HKSAR v. LAM SO CHOK

CACC255/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.255 OF 2002

(ON APPEAL FROM DCCC 259 OF 2002)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant was convicted on 24 May 2002 in the District Court before Deputy Judge Jenkins of two charges of trafficking in dangerous drugs. He was sentenced to three years' imprisonment in respect of each charge, the sentences to be served consecutively. He applied on 6 June 2002 for leave to appeal both convictions and sentences and on 17 January 2003 abandoned his appeals against sentence.

2. The charges arose out of a surveillance operation by a police party at the ground floor of Block 38, Sau Mau Ping Estate on 15 December 2001. Two officers kept observation. The applicant was known to each of them. That evidence was not taken by the Deputy District Judge as a matter adverse to the applicant but assisted him in finding that the applicant was properly identified by the witnesses.

3. One of the officers testified he observed the applicant in the ground floor lobby of Block 38. He said he saw the applicant stand on a chair, reach up to a closed-circuit television monitor with a bunch of keys in his right hand, and then hold a plastic bag in his left hand from which he took another plastic bag. The applicant, he said, placed the second bag in a pocket in the front of his sweater. The applicant left the lobby and was intercepted by the two officers. He was searched and the officers said the drugs, the subject of the first charge, were found in the front pocket of his sweater.

4. Also seized from him, said both of the officers, was a bunch of eight keys, one of which was used in the presence of the applicant to open a flap on the side of the closed-circuit television monitor in the lobby of Block 38. The officers testified that inside that flap was found the drugs which were the subject of the second charge.

5. The applicant gave evidence that he had just finished breakfast in the market of Sau Mau Ping Estate when he was approached by two people he later knew were police officers. He said he was taken back to the lobby of Block 38 and dragged to a rubbish bin where one of the officers picked out a plastic bag of what appeared to be drugs and alleged they belonged to the applicant. He testified he was then dragged to the closed-circuit television monitor from which the officers took another bag of drugs. He denied possession of each quantity of drugs and of the key the officers testified they used to open the flap on the closed-circuit television monitor.

6. The Deputy District Judge considered carefully the evidence of the prosecution in the light of the evidence given by the applicant. He disbelieved the evidence of the applicant completely where it conflicted with that of the prosecution.

7. He was satisfied beyond reasonable doubt that the applicant had possession of each of the bags containing the drugs. In respect of each charge, he found the presumption in section 47(1)(a) of the Dangerous Drugs Ordinance ("the Ordinance") was raised. He found nothing in the whole of the evidence to rebut that presumption. He found the applicant to be in possession of the drugs contained in each of the two bags. He also found in respect of each of the two quantities of drugs that the presumption in section 47(2) of the Ordinance was raised. Again, he found nothing in the whole of the evidence to rebut that presumption. He found the applicant knew that what he possessed in the bags was dangerous drugs.

8. The applicant raises two main matters. Firstly, that his fingerprints were not found on either of the bags containing drugs or on the closed-circuit television monitor. No mention is made by the Deputy District Judge of evidence relating to fingerprints. It is clear that the presence of fingerprints played no part in the evidence. Given the evidence accepted as true by the Deputy District Judge from the observation of the police officers and the later finding of the drugs, the absence of fingerprints is not a matter which should have caused the judge any concern.

9. As to the presence of fingerprints, the judge would have taken the inference in favour of the applicant that his fingerprints were not found. No prejudice to the applicant can flow from that inference. There is nothing in this ground of appeal.

10. The second matter raised by the applicant is that he was "framed" by the police. This ground is no more than a complaint that his evidence was not believed thereby raising a doubt and that the evidence of the officers was believed. The judge carefully considered and evaluated all the evidence before him. He was entitled to come to the findings he made. There is nothing in this ground of appeal.

11. The final matter is a suggestion the applicant had seen an assault by the police on a friend on an earlier occasion and that the police sought to "frame" him. This was a matter not raised at trial. The applicant was represented at trial by counsel and if the allegation had any substance at all, it would have been raised and explored. There is no indication that it was. There is nothing in this matter.

12. The application for leave to appeal against conviction is dismissed.