THE QUEEN v. LEUNG LAP-KUEN

IN THE COURT OF APPEAL

1987 No 578

(Criminal)

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J U D G M E N T

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Power, J.A.:

1. The applicant was charged that on 12th August 1987 at the lane behind 21A Sands street, Violet Terrace, Western, Hong Kong, he had in his possession a dangerous drug namely 83.75 grammes of a mixture containing 8.21 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge and after trial in the District court before his Honour Judge Gall, he was found guilty and ordered to be detained in a training centre.

2. It was the Crown evidence that five police officers had laid ambush in the lane, three at one point and two at a point further on. The applicant and another person passed the three officers and one of them DC 1155 called upon them to stop. The two persons ran and, the applicant fell while still holding a Seven Eleven plastic shopping bag which was found to contain dangerous drugs. The applicant neither gave evidence nor called witnesses in his defence. The trial judge accepted the evidence of the Crown witnesses and convicted him.

3. The grounds of appeal are firstly that the trial judge erred in law in convicting the applicant when there "had been alleged some apparent contradiction in the Crown's evidence and he (the trial judge) has accepted that the contradiction was not entirely clear." It seems to us clear upon a proper reading of the passage in the Reasons for verdict referred to in this ground, that what the trial judge was saying was that it was not entirely clear that there was any contradiction. Further whatever contradiction it might be suggested did exist in the evidence was resolved by the finding of the trial judge that the police officer had used the words "Police don't move" prior to apprehending the 2 men. There is nothing of any merit in this point.

4. The second ground of appeal was that the trial judge erred in fact and in law in accepting the prosecution witnesses' evidence as true without reservation when he was told in evidence "that those witnesses had discussed their making of statement before coming to court." It is true that in cross-examination the police officer who first gave evidence was asked the question:

"You discussed making a statement with other officers:"

And he replied:

"Before coming to court had discussions."

There was no suggestion that anything improper had occurred. The matter was not pursued further by cross-examination and there was nothing in any other evidence to suggest that there had been any impropriety. In the circumstances there is again nothing of merit in this ground of appeal.

5. The third ground of appeal is that the trial judge failed "to give sufficient weight to the point that it would be very strange if PW1 saw and noticed the applicant was holding a white plastic bag in his right hand at the time of observation but PW2 and PW3, in the same team and position, did not, but instead gave different time of first noticing the bag." Again we are satisfied there is no merit of any sort in this point. It is true that the police officers were making their observations at the same time and from about the same place and that they did not notice at exactly the same instant that the applicant was carrying the plastid bag. However, they all did notice this at about the same time. Indeed their evidence might well have been properly regarded as suspect had they all said that they noticed the bag at exactly the same instant.

6. I turn then to the fourth ground of appeal which is that the trial judge failed to give sufficient weight to the point that when the first prosecution witness was asked who apprehended the other man he answered:

"Don't know 13319 or 22581 it was 4039 or 14330. They were from same team and ambushed ahead of us but in another position."

It was suggested that no effort was made to clear up this unsatisfactory answer and that this is a matter which should cause this court to consider that the conviction is unsatisfactory.

7. It is difficult to know what was meant by the first part of the answer as the witnesses must have known that the 2 officers he referred to were the two who `assisted him to apprehend the applicant. The remainder of the answer is perfectly clear he identified the other two officers as being the ones who apprehended the other man and it was common ground that they did so. It is true that the answer as recorded is not satisfactory. However, the cross-examiner made no effort to clarify it. Indeed, it appears that having received the answer he was not concerned to pursue it further. It may be that the answer as spoken was self-explanatory. Certainly this is not a matter, as it stands, of any assistance to the applicant in these appellate proceedings.

8. The final ground of appeal is that the trial judge erred in believing the prosecution witnesses that the applicant had been really holding the white plastic bag "while he was chased by the officers all of a sudden and that he still did not get rid of that bag as soon as possible." It is suggested that it is much more likely that the applicant would have thrown the bag away. This is no more than specualtion. The trial judge made a specific finding in this regard. Having heard the evidence he was satisfied that the applicant held the plastic bag when he ran and continued to hold it at the time when he fell and still held it when apprehended. Given these findings this ground is unarguable.

9. There having been no merit in the matters raised in the application, which is dismissed, and the period of detention in a training centre will be ordered to run from today.