R. v. MA SEE KEUNG and Another

IN THE COURT OF APPEAL

1994, No.376
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The two applicants faced a charge of trafficking in dangerous drugs. The particulars were that they, together with one other person, on 1st July 1993 at Room 2607, Fu Yat House, Tai Wo Hau Estate, Kwai Chung, unlawfully trafficked in dangerous drugs, namely 24.77 grammes of a mixture containing 13.81 grammes of salts of esters of morphine.

2. The facts were simple. The police were, it seems, keeping the flat under surveillance. As the 1st applicant was leaving, the police party entered and found the 2nd applicant at a table with drugs and packaging equipment.

3. The police evidence, as we have indicated, came from five prosecution witnesses. It was attacked upon the basis of discrepancies between the evidence of the witnesses and inconsistencies. There was no evidence called from the applicants.

4. At the end of the trial the judge, having reviewed the evidence of the prosecution witnesses, said:

"There is no evidence before me to contradict what these witnesses have said. My assessment of each one, after observing him and considering his evidence, is that he was truthful. I accept their evidence."

He then went on to examine a suggestion which had been put forward by the defence that there was no cogent evidence to establish that any packaging of drugs had been taking place when the police came into the premises. He said:

"I have considered the argument carefully but I think the evidence of a packing operation is overwhelming. This unexplained feature of the exhibits does not produce, in my mind, any doubt of that. I think the inference must be drawn, and there is no other reasonable inference to draw, that D2 was packing drugs for the purpose of dealing in them."

He went on then to make his findings in the matter overall saying:

"I find that the police party gained entry to the premises after D1 went through the wooden door, leaving it ajar behind him and as he opened the iron gate inwards with the intention of leaving. PW1 made sure the iron gate remained open, took control of D1, and pushed open the wooden door giving access to Room 2607.

On entering, the police party found D2 seated at a table holding a small sheet of paper in one hand and a small plastic bag in the other. On the table before him were 3 bags of a mixture found on later analysis to contain heroin, and the several other exhibits produced in this case all of which, in my view, support only one reasonable inference that they were to be used for the purpose of packing the heroin mixture. I find that was what D2 was doing at the time, and that he was doing it for the purpose of dealing in them.

On these finds the charge of trafficking in dangerous drugs is proved against D2.

I find that just before this entry D1 left that wooden door, going past D2 as he did so. Therefore he must have seen that D2 was packing drugs and understood why D1 admits that the drugs belonged to him. I find that, jointly with D2, D1 was in control of those drugs.

On these findings the 1st charge is also proved against D1."

The applicants today complain that the trial judge failed to make a proper assessment of the prosecution evidence. The 1st applicant says that the trial judge was negligent in his assessment of the evidence. He suggests that he relied, when convicting him, as indeed does the 2nd applicant, upon matters which were contained in the statement of the 3rd defendant at trial. This statement was admitted in the trial but the 3rd defendant half way through the trial absconded, and the trial judge, when he came in his reasons to consider the evidence, made no mention of the statement and placed no reliance thereon. It was clearly inadmissible against the two applicants, and the trial judge gave no heed to anything contained therein. There can be no complaint made that he somehow relied upon it when coming to his conclusion as to the guilt of the applicants.

5. Both applicants also complain that the police were not telling the truth and they both raise a number of discrepancies which they suggest were matters which should have cast doubt upon the evidence of the prosecution. The trial judge, as we have indicated, carefully considered that evidence. Matters of fact were matters for him and he was, at the end of the day, satisfied that the police officers were truthful and that the evidence were sufficient to establish that a packaging operation had been taking place.

6. It was also raised by the 2nd applicant the fact that no traces of drugs were found on his hands. This is another matter which was a matter of fact for the consideration of the trial judge. It occasioned him no doubt as to the applicant's guilt of the offence charged.

7. The applicants have today raised nothing which would indicate to us that the conviction was either unsafe or unsatisfactory, and the applications for leave to appeal against conviction must therefore be refused.

8. The applicants also seek leave to appeal out of time against the sentence of five years that was imposed upon them. In this application they are represented by Mr. Murray. He can do no more than seeking to justify the application out of time by saying that they received late advice to make the application from a Legal Aid Officer when he visited them in prison to take instructions in relation to their application for legal aid on the appeals against conviction. This seems to us to be no good ground for granting an application for leave to appeal out of time. However before refusing it we indicate that we have considered the reasons why it is suggested that the sentences should be reduced and we find nothing in the suggestion that they should have been made concurrent with the earlier sentences that had been imposed upon the applicants.

9. The application for leave to appeal out of time must, therefore, also be refused.