LO BING SUN v. R.

1993, No. 661
(Criminal)

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J U D G M E N T

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Mayo, J.

1. The Applicant was charged with possession of dangerous drugs being 742.49 grams of a mixture containing 334.99 grams of salts of esters of morphine. After a trial before Duffy J. in October 1993 he was convicted.

2. The facts are very simple. The Applicant was seen by two Police Officers together with another man Lee Kwok-ho in the lobby of Chung King Mansions in Pan Hoi Street at North Point in the afternoon on 22nd October 1992. The Applicant was holding two gift wrapped packages. When the officers approached the men, Lee called out "Flee." According to the Police evidence, both men started to run away. They were both apprehended and brought back. The packages which were in the Applicant's hands were found to contain the dangerous drugs which are the subject of the charge.

3. A decision was made by the Prosecution to only charge Lee with assaulting a Police Officer.

4. He was sentenced to two months' imprisonment for this which was subsequently reduced to one month. Legal Departmnet had formed the opinion that there was insufficient evidence to warrant charging Lee with the instant offence.

5. The basis of the defence run by the Applicant was that Lee was well known to him. Arrangements had been made for he and Lee to attend a birthday party together. The Applicant had met Lee and in casual circumstances had suggested that the Applicant should carry the gift packages to the party. He had no reason to believe that the packages contained dangerous drugs. He denied that he had attempted to run away when they were approached by the Police Officers.

6. The main complaint which is made by the Applicant was the judge's ruling during the trial which effectively prevented him from attacking Lee's character. Lee had a chequered history. At the time of his arrest in respect of the assault, he was out on bail. He had been charged with being in possession of offensive weapon.

7. In addition to this, Lee was arrested in August 1993 and was charged with manufacturing 4 kilos of heroin.

8. Duffy J. had ruled that these facts were irrelevant and excluded the evidence.

9. The second ground of appeal which is closely related is the refusal of Duffy J. to order a stay of the proceedings.

10. The second and third grounds complain about the favourable treatment given to Lee and the Applicant's contention that the arrest was "staged".

11. There can be no doubt that Duffy J. was correct in concluding that the evidence concerning Lee should be excluded. It would inevitably have invited the jury to embark upon speculation. It was also of minimal probative value.

12. The Applicant ran his case on the basis that he had been duped by Lee and his evidence had been disbelieved. That was the main issue in the trial.

13. We do not consider that the conviction is in any way unsafe or unsatisfactory. The application for leave is granted and is treated as the substantial appeal. The appeal is dismissed.