HKSAR v. WAN CHI KEUNG

CAC C 69/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 69 OF 2010

(ON APPEAL FROM DCCC NO. 1018 OF 2009)

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Hon Stock VP (giving the judgment of the Court):

1.  On 22 February 2010, the applicant was convicted by Judge Remedios in the District Court of one offence of trafficking in dangerous drugs and sentenced to a term of six years’ imprisonment. He now seeks leave to appeal against conviction.

2.  The charge was that on 20 July 2009, at the lift lobby on 35^th floor of Mei Yue House, Shek Kip Mei Estate, Sham Shui Po, the applicant unlawfully trafficked in 120.83 grammes of a powder containing 98.87 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  Another man, Chan, who was arrested at the same time, was charged with possession of ketamine at that place and pleaded guilty.

3.  The prosecution called a number of police officers to give evidence but the applicant did not testify nor did he call any evidence on his own behalf.

4.  The evidence of the main prosecution witness, a police constable, was that at about 8 pm on the night in question he observed the applicant and Chan enter the applicant’s flat on the 35^th floor and emerge shortly thereafter, apparently empty-handed, but acting warily.  The officer emerged from the place at which he had been hiding, was observed by the two men who then walked quickly away at which point he shouted loudly, “Stand still.  Police.”  They ignored him and turned quickly into the lift lobby.  The officer ran after them and in the lift lobby he saw Chan with one of his arms stretched out through a window at the lobby.  He saw that the applicant was then holding a black plastic bag in his right hand and a transparent plastic bag in his left hand and himself moving quickly towards the window.  Other officers then arrived.

5.  The black plastic bag had been secured with an elastic band and was opened by the police officer and inside were nine plastic re-sealable bags containing white substance which upon subsequent analysis was identified to be ketamine, and which formed the basis of the charge in this applicant’s case. Two packets of drugs were found on Chan and on the ground floor outside the building was found one packet, seemingly the one that had been disposed of by Chan.

6.  The applicant was further searched but nothing of consequence was found upon him or in his residence nearby.

7.  Upon his arrest, according to this evidence, the applicant said, “Ah Sir, I know nothing.  I just intend to sniff K with him.”

8.  It was an admitted fact that the black plastic bag was examined and tested for fingerprints and that no fingerprints were found.

9.  Evidence was led that the street value of the drugs found on the applicant was $13,774.

10.  Cross-examination of the main prosecution witness was directed at suggesting that at no stage did the applicant hold the black plastic bag, or indeed any other bag, and that the first time that he saw the plastic bag was at the police station sometime after his arrest. Allegations were put to the police officers about things said and allegedly done but none was supported by evidence from the applicant or anyone on his behalf.

11.  In her careful and detailed Reasons for Verdict, the judge correctly summarised the evidence and identified the issues in the case and addressed in particular the emphasis placed by the defence on the absence of fingerprint evidence.  In this regard, she noted that the black plastic bag was, on the testimony which she had received and which she had accepted, handled by a number of people, not only by the applicant and that no one’s fingerprints were found on the bag or on any of the other exhibits, and she concluded that absence of the applicant’s fingerprints “is not evidence that they were not in [the applicant’s] possession as described by the police officers.”  She rejected the suggestion, clearly implicit in the thrust of the cross-examination, that the police officers had framed the applicant and the judge pointed to a number of indicia which contradicted that suggestion.

12.  We do not intend to deal with each ground of appeal advanced.  Each one is, with respect, entirely without merit.  It is, for example, asserted that the judge was not entitled to make a finding in relation to the significance of the fingerprint evidence absent testimony from an expert.  On the facts of this case, there was no need for expert evidence. The judge’s logic on the issue is impeccable and a matter of common sense.

13.  It was then suggested that the judge failed “to address the inconsistency in the prosecution’s case, namely how [the applicant] came to have the bags in his hand when, according to the prosecution, [the applicant] left his residential premises with nothing in his hands.”  In this regard, there was no inconsistency whatsoever.  The evidence came from the officer himself and it was obviously implicit in his evidence that once the two men realised that they were being followed and risked apprehension, they took the drugs out from wherever they were with a view to disposing of them through the window at the lift lobby.

14.  There is another feature of the submissions made to us which is symptomatic of a trend, which is to seek to elevate the status of matters put in cross-examination, quite unsupported by testimony.  So, for example, we find in the written submissions several references to the applicant’s “version of events”; and an assertion that: “… the trial judge completely ignored [the applicant’s] version of events and failed to exercise her judicial role in evaluating both sides of the case in an objective manner.”  The judge in fact took careful note of the matters put on the applicant’s behalf and evaluated the prosecution evidence in the light of them, but the present point is that there was in fact not an iota of evidence from the applicant.

15.  There is not a scintilla of merit in this application and it is dismissed.