THE QUEEN v. CHEUNG KAM-SHING

IN THE COURT OF APPEAL

1995, No.693
(Criminal)

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J U D G M E N T

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

1. In this matter the applicant faced one charge of trafficking in a dangerous drug. It particularized that on 1st August 1994, inside the middle room on the 5th floor of 184 Hai Tan Street, Sham Shui Po, Kowloon, he had unlawfully trafficked in a dangerous drug, namely 88.69 grammes of a mixture containing 25.36 grammes of salts of esters of morphine.

2. The facts revealed that a lady, who was referred to at the trial as the second arrested person, was apprehended at the ground floor of 184 Hai Tan Street, and that the police officers who apprehended her then went back to the fifth floor with her. She opened the flat door with her keys and the police officers upon entering saw the applicant sitting at a desk in the middle cubicle. A quantity of white powder was found on the desk top and the applicant was holding a transparent bag in his left hand into which he was putting some white powder. The applicant was then questioned. Upon being asked what the white powder was, he said it was dangerous drugs. A search was then conducted and a number of articles connected with dangerous drugs were found on the premises and taken possession of by the Exhibits Officer.

3. The trial judge, when coming to her decision, stated that the accused's defence was that the dangerous drugs together with the incriminating exhibits were not his, that they had not been found as the prosecution said they had but had been planted there by the police. The applicant gave evidence to that effect. He also said that the inculpatory statement which had been taken from him was not true.

4. The trial judge then went on to outline the evidence, which she accepted when coming to her conclusion as to guilt, saying:

"In his statement made under caution, the accused admitted: that he had bought the dangerous drugs from a person called Ah Shing; that Ah Shing took the drugs to the middle room at about 4:30 p.m. on the day in question and gave them to him; that he packed the dangerous drugs there secretly each time without his elder brother (who was the tenant of the room) knowing about it; and that the two packets of dangerous drugs found in the black handbag also belonged to him."

The judge went on:

"The accused was found in the process of packaging the drugs when the police found him in the middle room. A large quantity of drugs including five plastic bags containing drugs were found. A weighing scale, a total of 63 empty plastic bags and 13 plastic bags containing traces of drugs were also found. I consider it an irresistible inference from the whole of the evidence that the drugs were for trafficking by way of sale and that the accused was packaging them for that purpose.

I was satisfied beyond reasonable doubt that the accused was guilty as charged and I convicted him accordingly."

5. The judge rejected the evidence of the accused saying that she was satisfied beyond reasonable doubt that the police officers had told the court the truth. The applicant in the grounds which he drafted himself has relied upon four matters.

6. In the first he says that the first police officer PC4588 admitted when giving his evidence and being cross-examined thereon that there were loopholes in his evidence and he states that the evidence was not perfect. These were matters of evidence and credibility which were essentially for the trial judge. She clearly was not prepared to accede to any submission that the officer was not a truthful witness. Deficiencies often occur when a witness is giving evidence about a complex seizure of drugs, but whatever those deficiencies might have been, the judge was satisfied that the officer was, overall, a truthful witness. There is nothing in this ground.

7. The second matter raised by the applicant is that the Chemist's Report had been lost. He suggests that the purity of the dangerous drugs was "told by memory" and that it was unfair to convict him upon that evidence. There is nothing in this ground as the purity of the dangerous drugs and an analysis of the contents of what was found on the premises were all facts admitted under s.65C of the Criminal Procedure Ordinance and agreed to and signed by Mr. James Lee, the counsel for the defendant.

8. The third matter raised is a suggestion that a Miss Ho Yin-foon, who the applicant suggests could have been a key witness in the matter in his favour, did not give any testimony. It is true that she did not give evidence but it was open to the applicant, as it had been open to the Crown indeed had they wished to do so, to have called Miss Ho. She was not called by either side and it was for the judge to come to her conclusion upon the basis of the evidence which she had before her.

9. The final matter which the applicant raises is a suggestion that the first witness PC4588, having been told not to discuss his evidence while the court was in recess, had, in fact, done so with the second witness Inspector Wong. The applicant says that the witness admitted to having done so while giving evidence saying that the inspector had asked him about the facts of the case but that he had not made any reply. The applicant seeks to cast doubt upon the veracity of that evidence by saying that the conversation between the witness and Inspector Wong must have been of some importance as it lasted for some 2 to 3 minutes. Again, what occurred and the explanation that was given was a matter of evidence which was peculiarly within the province of the trial judge. She clearly was not shaken in her belief as to the veracity of the witness by whatever did occur.

10. Nothing that has been raised before us today that occasions us any doubt as to the propriety of the conviction and the application for leave to appeal against it is therefore refused.