HKSAR v. VU VAN THANH

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JUDGMENT

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

1. The applicant was convicted on 27 January 1999 by His Honour Judge Wright in the District Court of one charge of trafficking in dangerous drugs. The particulars of the charge were that on 20 July 1998, at the junction of Yu Chau Street and Nam Cheong Street, Sham Shui Po, he unlawfully trafficked in a dangerous drug, namely 28.01 grammes of a mixture containing 23.63 grammes of heroin hydrochloride. After trial, he was sentenced to 6 years imprisonment. He now seeks leave to appeal against conviction and sentence.

2. The facts are not of an unusual nature. On 20 July 1998 at about 12.37 pm, two police officers in plainclothes were on patrol. They stopped and searched the applicant on suspicion of being in possession of dangerous drugs. One of them found in the pocket of his jeans a brick-like object wrapped in plastic bags. Expert evidence later established this to be the drug charged.

3. At his trial he gave evidence and so did his cohabitee. The care and fairness with which the judge dealt with the case can be seen from his rejection of the cautioned statement that the prosecution sought to put in. He refused to admit it not because of the applicant's complaints of assaults by the police, which he in the event disbelieved and rejected but because the statement was recorded in Chinese characters. This the applicant, being Vietnamese, is not able to read. Yet the formal text of the statement said that the applicant had read over the statement. The judge very fairly, and perhaps over cautiously, refused to admit the statement on that account.

4. The judge then very carefully addressed all the evidence, not least the alibi evidence of the applicant's cohabitee which he rejected for the convincing reasons he gave. Among those were the significant features in which her evidence conflicted with that of the applicant. The judge also rejected the applicant's evidence for the good reasons which he recorded. He accepted the evidence of the police officers who found the drug. This, he was entitled to. Again he gave his reasons. In his thorough judgment the judge carefully and convincingly examined all aspects of the case and found the applicant guilty.

5. In his application for leave to appeal against conviction the applicant gives only these grounds:

Before us today he has said that there is nothing he wishes to add to that.

6. There is nothing whatsoever in those grounds. Certainly nothing of the least substance. We refuse the application for leave to appeal against conviction.

7. Turning to his application for leave to appeal against sentence, what he says is this:

"If his honour himself had convicted me, he could not sentence me in such a harsh term. Therefore, I hope that the Supreme Court will consider my case."

8. As to his sentence, the quantity he was charged with trafficking was an amount of 23.63 grammes of narcotic as we have already said. This quantity falls squarely within the second bracket of the tariff in R v Lau Tak-ming [1990] 2 HKLR 370, which attracts the range of 5 to 8 years imprisonment. Six years was entirely proper. Again, there is nothing whatsoever in the grounds that he purports to rely upon. We can see nothing wrong with the sentence. Leave to appeal against it is refused.

9. Having warned the applicant at the outset of the hearing of this possibility, and there clearly being no merit whatsoever in the applications, we order three months of the period he has spent in custody to be disallowed from his sentence.