HKSAR v. TSANG CHI LING

1997, No.670
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 22nd October 1997, the Applicant was convicted, following a trial before Deputy Judge Beeson, as she then was, and a jury in the High Court, on two counts of trafficking in methamphetamine hydrochloride ("ice"). Both offences related to events on 12th November 1996. The Applicant received a sentence of six years' imprisonment on each count to run concurrently. He now seeks leave to appeal against his conviction, having earlier abandoned his appeal against sentence which we have dismissed.

2. The prosecution's case against the Applicant was that he was stopped in the street near his home. Police found the drugs relating to count 1 in his possession, namely a mixture containing 10.71 grammes of ice. These were wrapped in a resealable plastic bag hidden inside a cigarette packet. Police then searched the room where he lived and found a mixture containing 10.26 grammes of ice divided into 14 separate plastic bags and 196 tablets containing 2.64 grammes of ice.

3. The case for the defence was that all of these drugs were kept by the Applicant for his own consumption. He denied that he was trafficking in ice. In order to give further support to his account that he was merely a consumer of the drugs, he put before the jury his criminal record which demonstrated that on two separate occasions, in 1994 and 1995 for theft and possession of dangerous drugs respectively, he had been sent to a drug addiction treatment centre for six months.

4. There was one slightly unusual feature of the case. The prosecution were permitted in the face of objection by defence to adduce evidence that, four days before the Applicant arrested for these offences, the police had raided his address where they found a small weighing scale and 38 resealable plastic bags. On that occasion, 8th November 1996, they did not find any drug.

5. The prosecution alleged that the items found on 8th November 1996 provided relevant and probative evidence to show that the Applicant was a trafficker. The bags were capable of demonstrating that the applicant had apparatus to pack and the scale showed that he had apparatus to weigh the ice for resale. Additionally it was pointed out that there was, on 8th November 1996, no used drug taking apparatus found in the premises.

6. By the time of the trial, the police had destroyed the items seized on 8th November. Nevertheless, the Applicant accepted the findings of the police on that occasion and gave an explanation in his evidence for those items. So far as the absence of drug-taking equipment was concerned, he did say that there was fresh equipment such as foil and paper cups suitable for use at the address.

7. The jury were reminded in full by the judge during the summing up of what he had had to say. His account was that the scale had been given to his girlfriend by friends of hers, and he shared the accommodation with her. She needed a scale in order to weigh letters before sending them to friends of hers abroad. Regarding the plastic bags, he was apparently working at that time as a hawker and needed them to keep buttons in connection with his work.

8. Mr. Chan, on behalf of the Applicant, has submitted that the evidence about the earlier raid has led to the introduction of irrelevant and prejudicial evidence about the weighing scale and plastic bags when no charge relating to the events of 8th November had ever been laid. He also submits that it was wrong to admit evidence about those items after they had been destroyed. Finally, on this point he submits that the prosecution should not have been permitted to lead evidence that there was no drug-taking apparatus found on 8th November because it was also irrelevant to the case. He submits that evidence about the earlier raid was purely prejudicial, and perhaps to some extent might have led to speculation on the part of the jury that the Applicant was the subject of prior police suspicion.

9. We cannot agree with any of these points. Clearly, it seems to us, there was relevance in what the police found on 8th November. This was a case where the only live issue was concerned with whether the Applicant was proved to have been a trafficker or, alternatively, if the prosecution was unable to establish this, that he was a mere consumer of these drugs.

10. The prosecution had produced clear evidence of possession, and possession itself was never an issue in the trial so far as the drugs were concerned. The evidence of 8th November 1996 was being put before the jury as being closely linked to the events of 12th November. It was all part of the same story. To some extent, it may also have legitimately acted to rebut the account given by the Applicant, and the case that was put forward on his behalf, that he was merely a possessor of ice for his own consumption.

11. Regarding the destruction of the so-called "postal" scale and the plastic bags from the raid on 8th November, the introduction of that evidence might have been more difficult to justify if the Applicant had denied that the bags and scale were found by police at all. However, that is not the position. The Applicant accepted what police had found and we can see no reason why that evidence should not have been regarded as probative and admissible on the issue which the jury were called upon to decide.

12. All of the evidence of 8th November, in our judgment, was properly admitted. The summing up fully and fairly dealt with how the prosecution and defence dealt with it.

13. It is in those circumstances that we conclude that this application has no merit and must be dismissed.