THE QUEEN v. CHOI LEE HING AND ANOTHER

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JUDGMENT

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Hunter, JA (giving the judgment of the court) :

1. The applicants, Choi Lee Hing and Chan Hung Tai, were both convicted after trial by HH Judge Daniell on 22nd September 1989; the 1st applicant of trafficking in dangerous drugs and the 2nd applicant of possession of dangerous drugs for the purposes of trafficking. Both applicants stood charged with trafficking. The particulars of the offence were that on 22nd February 1989 beside Stone Hut No D32B1, Shing On Village, Shaukiwan, they unlawfully trafficked in a dangerous drug, namely, 75.47 grammes of a mixture containing 3.84 grammes of salts of esters of morphine.

2. The evidence led before the trial judge which he accepted, on behalf of the prosecution came from two police officers. The first of such police officers said that he saw the 2nd defendant lingering near an abandoned hut. He then went off to a nearby shop to make a telephone call. Shortly afterwards the 1st applicant arrived on a motorcycle. The 2nd defendant then went up to him and said: -

 

"Where are the goods? Here is $1,200. I still owe you $300."

To that the 1st applicant replied, in these words: -

 

"Don't be so fucking cheeky. Follow me to Hei Lui."

They then walked off together along a path to return some two minutes later. At this time the 2nd applicant was carrying a plastic bag. They were both stopped and searched. In the plastic bag which the 2nd applicant was carrying were found ten polythene packets containing the quantities of dangerous drugs specified in the charge. A police officer asked the 2nd defendant about these drugs and he replied: -

 

"This white powder isn't mine."

When told that he was being arrested for possession of a dangerous drug for the purposes of unlawful trafficking, the police constable said he replied: -

"I was minded to come here to repay money to Choi (that is the 1st applicant) and to get some white powder for him conveniently. Once I saw him, you two approached me."

3. When the 2nd police officer searched the 1st applicant, it was discovered that he had in his pocket $1,200 and when asked about the white powder, the 1st applicant said: -

 

"The white powder doesn't belong to me. It's nothing to do with me."

The trial judge had no difficulty whatever in accepting this evidence from these two police officers. No evidence was given by either of the applicants at the trial.

4. The point taken on appeal by counsel for the 1st applicant relates to the third prosecution witness. He gave evidence which started like this. He said that. he was the Chief Inspector of Police, Kowloon Regional Police Headquarters in charge of narcotics, and had been in narcotics for four years from 1984 to 1988.

He then went on to describe the price of one gramme of No 3 heroin in February 1989 and its purity. He was then asked about any special terms used by traffickers.

 

"Yes, at different levels."

He then went on to describe some of the argot of traffickers at street level, the language that they use when describing No 3 heroin, and the language they use for describing No 4 heroin. He was then asked this: -

5. He was then asked a number of questions in cross-examination, applying his expertise to the facts of the case. He explained that the drug in this case was No 3 heroin. He gave the value at February 1989. Another question was put to him.

6. The point taken for the first time in this court is that this witness gave no sufficient evidence explaining his qualifications to give expert evidence at all. He failed to give sufficient evidence qualifying him to give any of the evidence such as I have just read out. None of this evidence was admissible and that it was wrongly admitted by the trial judge.

7. We find some difficulty in seeing how this is maintainable having regard to the course that was taken by his representative in the court below. Putting that difficulty on one side, it seems to us that he was giving evidence of two different types. One was of the price and purity of No 3 heroin over this time which may indeed have been based in part upon hearsay and in part upon the 20 months that he spent in researching these matters. But insofar as that was concerned, it seems to us that the evidence that he gave that he spent 20 months in researching these prices, explained his experience and how he had got such experience.

8. As far as the evidence of terminology goes, this seems to be based upon his experience in the Narcotics Bureau over a four year period. Indeed it is a sort of experience which could well have been acquired by many officers on the beat. It is not based upon opinion at all; it is simply based upon experience in fact, of the use on the ground of various expressions by drug traffickers. With respect to the argument which presupposes that this is expert evidence, we have considerable doubts whether it qualifies as expert evidence at all. It seems to us that in the light of the evidence given as a whole this police officer made it quite clear that he had had substantial experience in the Narcotics Bureau which was quite sufficient to enable him to explain to the court the language or the argot of the trafficker in the street. With respect to counsel there is no substance in this point. Since it is the only point advanced there is no substance in the 1st applicant's application for leave to appeal against conviction.

9. The 2nd applicant seeks leave to appeal against conviction out of time. The timetable there is this. He was in fact convicted on 22nd September and sentenced to a term of three years imprisonment on 11th October. On 19th October he filed his first application for leave to appeal against sentence only. The first sentence in that application reads: -

"I have been sentenced to imprisonment for three years on a charge of possessing dangerous drugs for unlawful trafficking."

10. We should explain that in his case the judge came to the conclusion that the case in trafficking was not made out, but that there was no answer to a charge of being in possession of dangerous drugs for unlawful trafficking. He was plainly in possession and having called no evidence, there was no evidence whatever to rebut the presumptions which arose under the Dangerous Drugs Ordinance. That was the basis of his conviction for possession.

11. That this applicant was well aware that that was the offence for which he had been convicted, emerges from the very first sentence I have just read. It is therefore somewhat surprising to find an affirmation sworn by him in February of this year, saying that he thought he had been convicted of simple possession only. On that basis as late as 6th March of this year, he filed an application for leave to appeal against conviction out of time and that application was supported by grounds which assert that during the trial: -

"I always maintained that the dangerous drugs were meant for my own consumption. In my evidence and cautioned statement I had stated that I bought the goods for my own consumption."

Whereas at the trial he gave no evidence at all.

12. There is plainly in our judgment no merit whatever in that application for leave to appeal against conviction out of time. So far as the sentence of three years is concerned there is no way in which that can be criticised either. In those circumstances both the second applicant's applications fail.

13. Having considered the matter with some care this court has come to the conclusion that there was no merit in the applications made by either of these applicants and in the circumstances both are to lose three months of the time that has been passed since they made their applications.