R. v. LEE CHARM KUEN

IN THE COURT OF APPEAL

1995, No. 203
(Criminal)

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J U D G M E N T

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

1. The appellant, Lee Charm-kuen, was convicted by Deputy Judge McKee in the District Court on 14th March 1995 on two counts of trafficking in a dangerous drug contrary to ss.4(1)(a) and (3) of the Dangerous Drugs Ordinance. He was sentenced on the first count to imprisonment for 3 years and on the second count to imprisonment for 6 years, to run concurrently. He appeals against the convictions and also seeks leave to appeal against sentence.

2. The particulars of the first offence were that on 6th July 1994 outside the entrance of Block 23, Tai Po Centre, Tai Po, he unlawfully trafficked in a dangerous drug, namely 15.62 grammes of a mixture containing 3.77 grammes of salts of esters of morphine. The second offence was that on the same day, 6th July 1994, inside Flat H, 13th floor, Block 23, Tai Po Centre, Tai Po, he unlawfully trafficked in a dangerous drug, namely 132.01 grammes of a mixture containing 27.49 grammes of salts of esters of morphine. The estimated value of these drugs was about $20,000.

3. The prosecution case, which in the end the Deputy Judge accepted was that a team of police officers were on surveillance outside Flat H of the Tai Po Centre. They saw the appellant leave the flat and two of them followed him and stopped and searched him on the ground floor of the building. The dangerous drugs specified in the first charge were found on him. Keys also found in his possession were used to enter Flat H where further dangerous drugs were found. These two separate seizures are the subject of the offences specified in the two charges.

4. In the flat there was a Chinese female, Ng Yuk-lin. The Deputy Judge accepted that she was not involved in the matter. While he was in the living room of the flat to which he was taken, the appellant said to the police "you don't have to search her - the things are all in my room". He then went to an adjoining room and pointed to a drawer at the base of a bed. Drugs and other paraphernalia were found. The appellant was cautioned and in reply said the white powder was all his and the female had nothing to do with it. He requested that she should not be arrested. The two of them together with the exhibits were taken to the police station.

5. The Government Chemist's certificate procured later establishes that 55 straws found on the appellant's person and another 77 straws found in his room contained the quantities of the mixture and the salts of esters of morphine specified in the respective charges. At his trial, the appellant pleaded not guilty and challenged the cautioned statement sought to be adduced by the prosecution. He gave a different version of the events, which I shall come to. The judge ruled the cautioned statement admissible.

6. As I have said, the appellant gave evidence disputing the course of the events testified to by the Crown witnesses. He said that four police officers and not two as stated by the Crown witnesses accompanied him in the lift to the ground floor, and that three of them and not two were present during the search there. He also disputed that the drugs were found on his person, saying that they were planted on him. He disagreed with the police that he entered the flat with all of them. He stated that the drugs and paraphernalia were found in the flat without his assistance and suggested the door to one of the rooms might have been forced open. He stated that he was not shown the drugs specifically but merely a black bag and that he had no connection with the drugs since the bedroom belonged to a man called Chan. He said that Chan could not be traced.

7. Miss Ng Yuk-lin gave evidence on his behalf in a voir dire in the proceedings and also in the main trial. In the former she said she let the room, Room 1, to Mr Chan. She had made the letting arrangements with Mr Chan at the beginning of May and exchanged keys with him for a sum equivalent to 2 months' rent, but thereafter never saw him again at any time. He was said to work in China. She said the appellant came to stay at the flat at the end of May as he had no where to stay. Her version of the police's visit to the flat was at variance with the evidence given by the Crown witnesses. She said that when they came she had been in the toilet. She thereafter was mainly in her own room (Room 2). She said the police forced the door to Room 1. She was taken to the room and shown the plastic bag which was found to contain dangerous drugs. She said it was at that time she came in contact with the appellant outside Room 1. She denied knowledge of the dangerous drugs. She said the appellant slept on the mattress in the living room.

8. The judge, having considered the evidence of the prosecution witnesses and of the appellant and Miss Ng, accepted the prosecution witnesses as reliable and credible and made findings that the events occurred on the day as they testified. He did not find the appellant a truthful witness and rejected his evidence. He found that Miss Ng was prepared to present her evidence in a light which seemed most favourable to the appellant with scant respect for the truth. Her evidence, he said, could not relied on and he was not satisfied that she was a witness of truth.

9. In his written notice of application for leave to appeal, supplemented by two letters written to the Registrar of the Supreme Court from prison on 8th January and 18th February 1996, the former of considerable length, it can be seen that the several grounds he relies upon can be grouped under three headings. First, that the police witnesses were lying in an attempt to pervert the course of justice. Second, that his lawyer, to use his words, failed to protect his legal interests and time and again misled him. And third, that the police took away a receipt showing that Miss Ng had let part of the flat to Chan, and failed to produce it in evidence.

10. Beginning with the first of those heads, as I have said the judge accepted the evidence of the prosecution witnesses and rejected the evidence of the appellant and Miss Ng. It is true, as the appellant suggested, that there was some inconsistency between the evidence of the first two prosecution witnesses, i.e. the two constables, about the manner in which the appellant was approached when he emerged from the flat. However, the inconsistency is superficial and not of a nature that would warrant the rejection of the constables' evidence. Moreover, the judge had the advantage of seeing and hearing the two witnesses and indeed all the other witnesses and the appellant. We can find no reason or justification for interfering with the judge's findings of fact on the evidence and his acceptance of the prosecution witnesses' evidence and rejection of that of the appellant and Miss Ng.

11. We reject the first head of grounds.

12. Turning to the second head, this is the appellant's complaints against his lawyer. He says, first, that he asked his lawyer to raise a number of questions for clarification in relation to his cautioned statement. But he says, there was no cross-examination on the point until he strongly pressed the request. If the points he mentioned were raised albeit late, it can only mean that the point is now not material. Then, he says, he realised that his lawyer was confused and was unable to put his case properly. On the afternoon of the last day of the trial he overheard a conversation between Crown counsel and defence counsel about speeding up the trial. As a result, he says, after the court resumed, the important part of his case was skipped. What that important part was is not clear. He adds, moreover, the case was adjourned for final submission to be made in a few days later before clarification had been made of a number of questions he raised with his lawyer. Therefore, he says, he had sufficient reason to believe that his lawyer failed to take into account his legal interest and was not faithful to the discharge of his duty. We find nothing material in that complaint.

13. His second point as he puts it, is that his lawyer advised him that in any case only an appeal against sentence would be feasible. Yet, he says, against that advice he lodged an appeal both against conviction and sentence and the Legal Department agreed to take over his appeal against conviction. Again, there is nothing in this ground. We find no merit in these complaints.

14. Finally, turning into the third head of appeal, i.e. the missing rent receipt showing Chan was a tenant, the judge said this in his reasons for verdict at p.8:

"There was considerable evidence in respect of a Mr Chan being a tenant of the room where the dangerous drugs were found on 6th July 1994. However as a result of extensive cross-examination the position was found to be, according to Miss Ng, that, after a mutual meeting at the beginning of May 1994 Mr Chan was never seen by Miss Ng again. The Defendant tried to say that he had met Mr Chan for a brief moment but I did not believe the Defendant on this point. I have great doubts if this Mr Chan really exists but I find I cannot completely discount it. However I do find that, as at 6th July 1994, he was no longer in occupation of Room 1 and I reject any idea that the drugs and paraphernalia in Room 1 belonged to him."

Plainly, the absence of the receipt did not prejudice the appellant in the way he seeks to suggest. This ground likewise fails.

15. Accordingly we find no merit in his grounds against conviction, and his appeal is dismissed.

16. He seeks leave also to appeal against the sentences which, he says, are excessive. But they can plainly be seen to be within the guidelines applicable and indeed appropriately placed in the recommended range. Moreover, and in the applicant's favour, the longer sentence of 6 years has been made concurrent with the first, correctly in our view. There is plainly no merit whatever in his complaint that the sentences are excessive. His application for leave to appeal against sentence is refused.