HKSAR v. NG PEI WAH

CACC12/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2003

(ON APPEAL FROM HCCC 112 OF 1999)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Background

1. On 19 December 2002 the applicant was convicted after trial in the Court of First Instance before Recorder Lok SC and a jury, of one count of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap.134, for which offence he was sentenced to 10 years' imprisonment. The applicant now seeks leave to appeal both against his conviction and against his sentence. As regards his appeal against sentence the applicant failed to give timely notice of his intention and thus his application is to seek leave to appeal out of time.

The prosecution case at trial

2. In the afternoon of 12 December 1998 two police officers stopped the applicant in the corridor of the 1st floor of Block 6 at the Un Chau Street Estate. They searched him and found on his person six transparent plastic bags each containing a white substance. The applicant was cautioned and, in response, he said : "Ah sir, I have just hoipei. Give me a chance." He was asked what he meant by hoipei and he said : "Some are for my own use and some are for sale to other persons."

3. Upon subsequent analysis the white substance was found to be 160.18 grammes of a mixture containing 91.20 grammes of heroin hydrochloride and 6.05 grammes of monoacetylmorphine hydrochloride.

4. On the date of his arrest the applicant was living in Room 1013 of Block 6 and he had the keys to those premises. Using those keys the police officers entered the applicant's home and, inside a drawer, they found a pair of scissors bearing traces of dangerous drugs, a postal scale, $2,000 cash and a letter addressed to the applicant.

5. At this stage one of the police officers recorded in his notebook the previous statement made by the applicant which he (the applicant) then signed. He was taken to the Cheung Sha Wan Police Station but from there he was taken to hospital as he complained of stomach pains. After receiving medical treatment, the applicant was brought back to the police station and transferred to regional headquarters, where he was interviewed. That interview was video-recorded and, in the course of it, he admitted that he intended to pack the drugs for another person for a fee of $1,000.

The defence case at trial

6. The applicant gave evidence at his trial and he claimed he had been 'framed' by the police. He said he never uttered the words attributed to him by the police officers. He also said that he was coached by the police to say what he did say in his video interview. As to the apparatus found in the flat, he said that at the material time he was not living there and that the letter bearing his name was in consequence of his brother using his (the applicant's) name to buy a mobile telephone.

The grounds of appeal against conviction

7. In his written grounds of appeal the applicant says this :

"The judge was biased in favour of the police in that he often interrupted my counsel's cross-examination of the prosecution witnesses during my trial.

In addition, on the day of arrest, I went to Caritas Medical Centre to consult a doctor as I suffered from intestinal congestion and stomachache. However, the prosecution said that the records of my medical report were lost. I therefore invited the doctor of Caritas Medical Centre to attend court to prove that I really suffered from intestinal congestion and stomachache on the day. I did not attend the video interview and give statement(s) to the police voluntarily, but the judge was biased in favour of the prosecution.

What's more, the police stole from me $2000 and my exhibits which were to be produced in court. None of the prosecution exhibits bore my fingerprints.

During the trial, before I was found guilty, the judge allowed the prosecution to tell the jury my previous criminal record(s). This definitely did me an injustice.

In the light of (the above), I hope that the Legal Aid Department can appeal for me and do me justice."

8. In the event the applicant's application for legal aid was refused.

9. We have read the Recorder's summing-up to the jury and, in our judgment, it is both comprehensive and balanced. The applicant's suggestion that the Recorder was, in some way, biased against him is wholly without foundation. The allegations made by the applicant against the police were extensively canvassed by the Recorder in his address to the jury and, as is apparent from its verdict, the jury rejected those allegations as had done the Recorder himself upon the conclusion of a voir dire held to determine the question of the voluntariness of the applicant's admissions.

10. Likewise, the fact that the applicant was apparently suffering from stomach pain and that he had a medical certificate to support that was also put fully before the jury. As to the absence of his fingerprints on the exhibits produced at trial it was an admitted fact that there was no mark of value for fingerprint comparison on the two exhibits which were examined.

11. The defence case being that the applicant was 'framed', it involved the applicant making grave allegations against the prosecution witnesses. In consequence the prosecution was permitted to cross-examine the applicant on his previous convictions by virtue of section (1)(f)(ii) of the Criminal Procedure Ordinance. The application to do that was made before the Recorder in the absence of the jury. In the course of his summing-up the Recorder correctly directed the jury that such previous convictions only related to the issue of credibility and he also correctly directed the members of the jury as to their proper approach to the evidence that the applicant had absconded whilst on bail.

12. Albeit that it is correct, and indeed it was an admitted fact at trial, that the $2,000 to which the applicant refers in his grounds of appeal was stolen by a clerk in the 'property office' and thus could not be produced as an exhibit, in our judgment there is nothing in the applicant's complaints concerning his conviction. We accordingly dismiss that application.

13. As to the application for leave to appeal against sentence out of time, this is without merit and is refused. We would only add, so that there is no doubt about it, that as the drugs in question amounted to 97.25 grammes of heroin, and as the applicant has previous convictions for trafficking in dangerous drugs, the sentence of 10 years' imprisonment was wholly appropriate in accordance with the guidelines in R. v. LAU Tak-ming and others [1990] HKLR 370. Whilst the applicant sought, before us, to compare his sentence to an identical sentence imposed upon a prisoner who was convicted of two drug trafficking offences involving in total a larger amount of heroin, every case depends upon its own facts and, as we are not aware of the full facts of that other case it cannot assist this applicant.