R. v. TSE CHUN YING

IN THE COURT OF APPEAL

1995, No. 49
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant was convicted of a charge of trafficking in dangerous drug and sentenced to 23 years' imprisonment. She now applies for leave to appeal against both conviction and sentence.

2. The issue at trial was simply whether the applicant knew that she had in her possession a quantity of heroin and that she knew that it was heroin.

3. The evidence adduced on behalf of the prosecution is straight-forward. At about 10:10 am on 9 June 1994, the applicant was searched at the Lo Wu Customs Arrival Hall when she came into Hong Kong from China. After the search, it was found that there was inside a quilt which was placed inside a bag on her trolley some 13 blocks of heroin. When she was asked what it was, she said she had no idea and the stuff was not hers.

4. The suspected heroin was sent to the Government Chemist for analysis and it was found that the quantity was approximately 41/2 kilogrammes. When she was cautioned, she told the customs officer that she had earlier met an old man when she was having breakfast in a hotel on the Chinese side of the border. According to her, this old man told her that since he had difficulty in walking, he would like her to take the trolley to Lo Wu Station for him where his daughter-in-law would meet her and she would give the applicant $500.

5. Later, the applicant admitted that her statement under caution was a lie.

6. We have considered the summing up of the judge and are of the view that the judge had carefully and correctly dealt with all the matters that needed to be dealt with and we, for our part, certainly could not flaw it in any way.

7. However, leading counsel for the applicant complains that there is a passage in the summing up which, upon analysis, renders the conviction unsafe and unsatisfactory. The passage complained of is at page 17 where the judge referred to the conflict of evidence between the customs officer and the applicant as to what was on the trolley and what she was carrying on her person at the time.

8. We have been referred to the evidence of the custom officer as well as that of the applicant. Clearly, there was a conflict.

9. Leading counsel suggests several points in support of the argument that at the end of the day this court must at least entertain a lurking doubt as to the conviction. Some of the points mentioned are that the trolley did not belong to her and that it could well be that the applicant was an innocent courier; that the way the summing up was put seemed to have cast the onus of proof on the applicant; that the judge failed to deal with the question of lies adequately and that the custom officer's evidence was not reliable, etc.

10. We have considered all these points with care and do not find anything of merit in any of these points. We, therefore, dismissed the application for leave to appeal against conviction.

11. In passing sentence, the judge adopted a starting point of 25 years and gave a discount of two years in view of the fact that the applicant was 45 years of age and is a mother of five children who are about 8 to 21 years of age.

12. The starting point is in line with the guideline given in the authorities and we cannot say that the sentence imposed is excessive or wrong in principle. The application for leave to appeal against sentence is also dismissed.