HKSAR v. HUNG KAI-KING

CACC 486/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 486 OF 2001

(ON APPEAL FROM DCCC 444 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 3 October 2001, following a trial in the District Court before Judge Wesley Wong, the Applicant was convicted of trafficking in a mixture containing 12.57 grammes of heroin hydrochloride. He was sentenced on the same day to five years' imprisonment. The Applicant received a consecutive term of two months' imprisonment for having knowingly misled a police officer by the production of a Hong Kong and Macau Permit in the name of Hung Kai-hing. He pleaded guilty to this offence.

2. The Applicant now seeks leave to appeal against his conviction on the first charge. He alleged in his initial written ground of appeal that the judge had erred in finding that a police officer (PW1) had observed him taking a plastic bag out of the right front pocket of his jeans and putting it on the flowerbed in front of him when PW1 had made the alleged observation through binoculars, from a position 90 feet away, behind the Applicant's back.

3. The finding of the judge was not precisely in the terms in which this complaint is made. Rather, it was in accordance with the evidence given by PW1 who had said that the Applicant had his "right shoulder towards (him)" when he took a black object out of the right pocket of his jeans. The object, which was placed by the Applicant on a flowerbed, was later found to be a plastic bag containing the heroin. The evidence was that no one went near the flowerbed after the Applicant had placed the bag there until the moment it was retrieved by a police officer.

4. The issue, concerned with the accuracy of PW1's observation, was fully ventilated at trial, both in cross-examination and in defence counsel's speech and there is no substance to the complaint. As the judge rightly stated, PW1 had been observing with binoculars from the third floor of a building at an angle to the Applicant which enabled PW1 to see clearly what the Applicant did.

5. The application is dismissed.