HKSAR v. WU YUK LEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.621
(Criminal)

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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 19th September 1997, this Applicant was convicted of trafficking in heroin following a trial in the District Court before Judge Toh. He was sentenced to six years' imprisonment.

2. The Applicant now seeks leave to appeal against his conviction. His earlier application in relation to sentence is not pursued by him and we can dismiss that application straightaway.

3. The Applicant has supplied seven written grounds of appeal.

4. In his first ground, he says that the prosecution failed to prove beyond doubt that the defendant was guilty. There are doubts in many parts of the evidence of prosecution witnesses. If by "doubt" the Applicant refers to the discrepancies which had arisen in the case between prosecution witnesses, he is correct in saying that there were some of those. The judge itemized a number of the more significant of these and was fully aware of what they were when coming to the conclusion that they did not detract from the truthfulness of the crucial witness against the applicant who was PW3.

5. PW3 and other officers had been engaged in searching premises in King's Road when a mobile telephone began to ring. PW3 answered it. The caller wanted to speak to Yau Yu. He said he had "two things" that would cost $6,000. PW3 informed the caller that he would send a "brat" to get them. After this, police went to an automatic teller machine and withdrew $6,000. The numbers on the notes were recorded and PW3 went to the appointed place arranged on the telephone. PW3 was then approached by the Applicant who said "Hey brat, did Ming Gor ask you to come down to get the things?" PW3 agreed and said he had the money. PW3 then showed the notes which the Applicant took and in exchange the Applicant handed over the drugs which were the subject of the charge. On arrest he said, "Ah Sir, one has made one's bed and one must lie in it. Surely I will admit. Don't treat me badly."

6. With this background we can turn to the second ground of appeal advanced by the Applicant which is that the judge found the defendant guilty by "combining" the evidence of prosecution witnesses. This is not, he says, suitable or appropriate.

7. A judge is not only entitled to, but is supposed to, look at all of the evidence. That is his duty. There is no merit in that ground.

8. The third ground of appeal is that if, as police said, this was a carefully planned strategy, why did they not videotape the process? There is, according to the Applicant, no evidence to prove that he had any drug transaction.

9. As to this last point, there is, of course, the evidence of the police that the transaction did occur. We are not here to give a direct answer to the question posed by the Applicant but this was a point that was raised in front of the trial judge and she had this in her mind when she recorded her Reasons for Verdict. In other words, this was not a point that was overlooked by the judge before she reached her verdict.

10. Ground 4 is that when the police gave evidence they said, "I myself personally gave police the dangerous drugs. How come there was no fingerprint found on the dangerous drugs? There is no evidence to prove that the dangerous drugs were mine."

11. This point was also considered by the trial judge and the absence of any fingerprint examination was a factor which she bore in mind. This cannot cast any doubt over the verdict reached.

12. Ground 5 again poses a question which we are not able to answer, and nor indeed do we need to do so as it does not affect the soundness of the verdict but for the record it is this. "The first and second witnesses had conducted surveillance upon the defendant at the scene, how come they did not see the transaction circumstances at that time?"

13. The sixth ground is concerned with the fourth witness who kept the defendant under surveillance at the scene. "The exhibit of the dangerous drugs transaction which he witnessed was very different in shape compared to those described by other witnesses." In the last ground the Applicant says that the first witness said during the operation nobody was allowed to receive and listen to any phone calls. However the third witness said when the phone rang that the third witness did ask loudly whose phone was it and then he picked up the telephone and listened to the phone call, and because of this the dangerous drugs transaction was suspected. Why was the conversation not immediately recorded in writing and afterwards that conversation was not recorded in a recorder?"

14. Dealing with these two grounds together, as we have already said, the material discrepancies which occurred when witnesses gave evidence had been taken into account by the judge.

15. There is nothing of substance in any of these grounds and this application must, therefore, be dismissed.