R. v. LAU FAU SHAN

IN THE COURT OF APPEAL

1995, No. 294

(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted by a jury on two counts of trafficking in dangerous drugs.

2. In his homemade grounds of appeal he complains, inter alia, that the trial was unfair to him from the beginning, and that there were "doubts" in the evidence of the police officers, particularly PC49845 and PC49787. He contends further that there was inconsistency in the evidence of PC49787 in at least two respects: (a) whether the dangerous drugs in question were in a powder form or in pieces, and (2) whether anything else was found in the drawer in which the dangerous drugs were located in the applicant's hut.

3. It is also the applicant's argument that the ICAC saw the applicant regarding an allegation that the Wong Tai Sin Special Duties Squad had framed him and taken money, and as a result fifteen police officers of that Special Duties Squad were arrested.

4. The two counts which the applicant faced relate to trafficking in large quantities of dangerous drugs at two different places, i.e. outside Hut No. RKT 5BE-27 in Nam Shan Mei Village, Tsz Wan Shan and Hut No. RKT 13x15x9 of the same village respectively.

5. The Admitted Facts showed that a fingerprint lifted from the surface of a "Viceroy" cigarette carton in which the dangerous drugs were found was a print made by the left ring finger of the applicant.

6. In the summing up, the learned trial judge considered in some detail the conflict of evidence in relation to the alleged trafficking. She directed the jury in some detail as to the evidence both of the prosecution and the defence. In her direction respecting the second count, she referred to a piece of circumstantial evidence relied on by the prosecution, namely the possession of the keys to the hut in question. The keys were found in possession of the applicant and the applicant took the police to the hut and opened the door with the keys. Inside the hut, the police found the dangerous drugs in the second drawer of a chest of drawers. There were, in addition to the drugs, equipment relating to the packaging and weighing of drugs, bank passbooks and a China entry permit indicating that the applicant was using the drawer and living in the hut.

7. Upon arrest, the applicant made a cautioned statement, part of which was in question and answer form. The gist of the statement is that he made an admission to trafficking in the places mentioned in the two counts.

8. As the judge quite rightly pointed out, the main issue in the case was one of credibility. Having carefully considered the evidence, the judge explained all the inconsistencies in the evidence, in particular as to how the evidence of the applicant differed from that of the prosecution witnesses.

9. This morning, the applicant made five points. Firstly, he says that the police witness denied in his evidence that the dangerous drugs produced in court were the same drugs found on the day of his arrest. There was considerable doubt, he says, as to whether the drugs were in powder form or in pieces. However, the judge in her summing up quite clearly stated that the type or quality of the drugs was not in dispute. If there had been a dispute as to the form of the drugs, one would have expected his counsel, if it was of any importance, to have brought the matter up before the court.

10. Secondly, he contends that the arresting officer was PC3130 and the fact that this officer was not called as a witness indicated that many facts were concealed from the court. Again, this matter was considered in detail by the trial judge in her summing up. There was evidence from the police that PC3130 was not present and had nothing to do with the applicant's arrest. This issue was plainly before the jury.

11. Thirdly, it is said that PC49787 gave evidence that the keys to the hut were found in the applicant's trouser pocket but PC49845 said the keys were found in the applicant's handbag. This discrepancy, if there be a discrepancy at all, is of no significance. On the evidence, the jury was perfectly entitled to come to the view that the keys were found in the applicant's possession at the time of his arrest.

12. Fourthly, the applicant submits that as a result of his complaints to the ICAC, members of the Wong Tai Sin Special Duties Squad were arrested. The implication of this allegation is clearly that these officers were corrupt and therefore their evidence was not to be believed. It is true that the officers who were concerned in the arrest of the applicant in respect of those counts were members of the Wong Tai Sin Special Duties Squad but there is no evidence whatsoever that those officers were in any way connected with the allegations made by the applicant to the ICAC, in particular there was nothing whatsoever to indicate that the two arresting officers were in any way implicated by allegations of corruption or other misconduct.

13. Lastly, the applicant complains that PC49787 when giving evidence said at first that there was nothing beside the drugs in the drawer in question but on being further questioned, he said he forgot whether there was anything else other than the drugs in the drawer. There is nothing in this last complaint whatsoever.

14. Having considered the applicant's several points advanced this morning as well as his written grounds of appeal, we are of the view that there is nothing which he has written or said this morning that causes us any concern that either the judge might have erred in any way in her summing up or that the verdict was unsafe and unsatisfactory.

15. For these reasons, the application for leave to appeal against conviction is dismissed.