HKSAR v. LIEW YONG SIONG

CACC 628/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 628 OF 1999

(ON APPEAL FROM HCCC NO. 85/1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

Introduction

1. The applicant was convicted after trial in the Court of First Instance before Deputy Judge Wesley Wong and a jury of one count of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of The Dangerous Drugs Ordinance. He now seeks leave to appeal against his conviction.

2. The particulars of offence are that he, on 10 December, 1998, outside No.606, Shanghai Street, Mongkok, Kowloon, unlawfully trafficked in a dangerous drug, i.e. 347.01 grammes of a mixture containing 271.70 grammes of heroin hydrochloride.

Prosecution's case

3. The prosecution case was that on the morning of 10 December 1998, a team of police officers were carrying out an anti-dangerous drug operation in Shanghai Street at the junction of Fife Street. They saw the applicant standing at that junction outside a shoe shop, looking around. After about two minutes, another man walked up to him from Fife Street and spoke to him. They then separated and walked away in different directions. The officers who were PW1 and PW2 followed the applicant closely behind to No.626 Shanghai Street where the applicant went up the stairs and disappeared. He emerged from the staircase about a minute or so later with a transparent plastic bag in his right hand. The officers intercepted him and searched the bag he was carrying. Inside the bag, they found a wad of newspapers and in between the newspapers there was a brown paper envelope which contained a brick-like object wrapped in newspaper. The brick-like object was subsequently examined by the Government Chemist and found to be the dangerous drug which is the subject matter of the sole count in the indictment. The applicant was arrested and cautioned. In response, he asked to be given a chance and that he was willing to help the police. His reply was later post recorded by the officer who made the arrest after they had returned to the police station.

4. A left palm print of the applicant was found on the transparent bag and this was an admitted fact in pursuance of s.65C of the Criminal Procedure Ordinance, Cap.221.

Defence case

5. The applicant gave evidence in the witness box and his case was that he had an appointment for lunch at the Ngan Lung Restaurant in Mongkok with a man by the name of Kwok Hung whom he had met about 2-3 months ago at a banquet. Kwok had promised to find him a job and was going to take him for an interview as a surveying assistant on that day. In the restaurant, Kwok had a plastic bag with newspapers in it and the applicant took out a copy from that bag to read while Kwok was himself reading a newspaper containing horse racing information. At one stage, Kwok left the restaurant and came back with a brown envelope. Kwok told the applicant that Kwok's friend had gone to Shenzhen on urgent business and had asked Kwok to deliver some documents for him. Kwok asked the applicant to go with him before he would take him for the interview. After they had finished their meal, Kwok put the newspaper with horse racing information and the brown envelope into the plastic bag and carried the bag himself when they left the restaurant.

6. They met the police outside the Kei Cheung Aluminium Window Company. He was intercepted by the police while Kwok managed to run away. He was taken to outside No. 606 Shanghai Street by the staircase. Sometime later, another police officer, who was PW4 came back with a plastic bag and told the applicant that his friend had dropped it. The applicant was told to hold the bag. The applicant denied that the bag was his and that he was in possession of the bag and its contents.

7. It is plain that the jury disbelieved him as demonstrated by their verdict of guilty.

Grounds of Appeal

8. In his written statement, the applicant complained that the trial judge misdirected the jury and failed to give a clear direction on the contradictions between the evidence of PW4 and other witnesses.

Application for transcript, copies of police notebooks and adjournment

9. Before us, he renewed his application for the transcripts of the evidence of 3 police officers: Sergeant 19503, DPC 46947 and DPC 50143. He also requested for copies of their notebooks. He had made an application for the transcripts, in a mention hearing before the Chief Judge and was asked to give reasons to support his application. Subsequent to that, a letter was sent to him again asking him to furnish reasons for his application. But there had been no response from the applicant. Copies of the notebooks had been given to his counsel at the trial. A copy of the notebook of DPC 19802 was in fact produced at the trial and the applicant admitted that he has in his possession of a copy of that notebook.

10. The other notebooks were not tendered or used at the trial, although they had been supplied to the Defence. The applicant complained that the evidence of PW4 contradicted with the evidence of other witnesses. But he agreed that the judge had reminded the jury of the discrepancies. The applicant was represented by counsel at the trial. We refused his application for the transcripts and copies of the notebooks of the police officers. We also refused his application for adjournment.

Judge's direction

11. All the matters that the applicant complained of were placed before the jury by the judge in his direction and the relevant passage appears in his summing-up at pages 18 and 19 of the record. From L to S on page 18, the judge said:

"PW4, on the other hand, said that he received the first message and walked towards direction of Fife Street, and saw the defendant walking head on, to his direction. He walked past the defendant but did not notice any of his colleagues. Well, you can have a look at the photos in relation to the pavement to see if he could have missed seeing his colleagues, if they actually walked head on against him. PW1 and PW2 said the other man and the defendant parted. Defendant walked in Shanghai Street while the other man crossed the road. However, according to PW4, he saw defendant coming from Fife Street. The first time he saw defendant, PW4 was outside Ying Ging shoe shop. And the defendant was at the next shop, Yee Mei Decoration Company, walking towards him."

12. At page 19, from A to H, the judge continued:

"PW4 continued to walk and crossed Fife Street to the other side of Shanghai Street and then returned to Ying Ging shoe shop. It was then that he received the second message, asking him to tail the other man. In re-examination of PW4, he said that he was not the main witness, he was not asked to make a witness statement and he got mixed up. You have seen how PW4 gave evidence. He did not impress me as an intelligent witness. To me, he was not intelligent enough to make up stories. However, how to evaluate his evidence and what weight you will attach to his evidence, again, it is a matter entirely for you.

Well, can you be sure of the prosecution's evidence in view of this witness' evidence? Again, it is a matter for you."

13. It is clear from these passages that the judge fully directed the jury on this aspect of the case. He also directed the jury on the evidence of the other witnesses and left it to the jury for their decision as to whose evidence they were going to accept. It was open to the jury to accept the evidence of some of the prosecution's witnesses and to reject the evidence of other witnesses.

14. The jury, after evaluating the evidence, came to a conclusion to which they were perfectly entitled.

15. In relation to the complaint of the misdirection by the judge, we are satisfied that the judge's summing-up is adequate and there is no misdirection.

Conclusion

16. The conviction is in no way unsafe or unsatisfactory and we refuse the application.