R. v. WONG HAU KWONG

IN THE COURT OF APPEAL

No. 304 of 1995

(Criminal)

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J U D G M E N T

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Wong J. (giving the judgment of the Court):

1. The applicant was convicted before Gall J. and a jury of two counts of trafficking in dangerous drugs. He was sentenced to 14 years' imprisonment on the first count and 22 years' imprisonment on the second count, the sentences to run concurrently. He seeks leave to appeal against his convictions.

2. The particulars of offence are :

First Count

STATEMENT OF OFFENCE - Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the dangerous drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE - WONG Hau-kwong, on the 13th day of March, 1994 outside Ground Floor, No. 56, Dundas Street, Yaumatei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,379.32 grammes of mixture containing 377.91 grammes of salts of esters of morphine.

Second Count

STATEMENT OF OFFENCE - Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE - WONG Hau-kwong, between the 22nd day of February, 1994 and the 13th day of March, 1994 at a room in left Flat A, 4th Floor, Chung Yuen Mansion, No. 71A, Waterloo Road, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 4,927.61 grammes of mixture containing 1,408.79 grammes of salts of esters of morphine.

3. In the evening of 13 March 1994, PC49972 and PC47716 were on patrol in the vicinity of Dundas Street. Outside No. 56, they saw the applicant looking around. They approached him and told him that they were police officers. The applicant looked frightened and when the officers asked him why he looked frightened he did not answer. He was carrying a paper bag in his left hand. His identity was checked and he was then asked what was inside the paper bag but he did not reply. PC49972 took the paper bag from the applicant and told the applicant that he was going to search the bag as he suspected that there was dangerous drug in it. Inside the paper bag, the officer found four pieces of block-like object of the same size and they were all wrapped in silvery wrapping paper. There was no response from the applicant when the officer asked him what they were. The officer unwrapped one of the block-like objects and inside was something wrapped in a brown plastic sheet. He asked the applicant again what the four pieces of block-like objects were and this time the applicant said "Ah Sir, you know that it is white powder." This answer was later post recorded at Yaumati Police Station by this officer and it was admitted in evidence. Back at the police station, the officer also seized $24,286.00 cash from the applicant. His fingerprint was found on one of the bricks. It was not in dispute that the bricks were dangerous drug and the finding of this quantity of dangerous drug formed the subject of the first count.

4. Following the arrest of the applicant, the police visited an address at 71A, Waterloo Road, Flat A, 4th floor and inside a room, the lot of dangerous drug as specified in the particulars of offence of count 2 was found and seized. It was not disputed that the applicant rented the flat. The keys which opened the doors of the premises were subsequently seized from him and on being tested some of the keys fitted the doors of the flat. A Madam Lee gave evidence that other than the first time when another man came with him she saw only the applicant go to the premises. Mr. Tang, the caretaker of the building in which this flat was situated said that he only saw the accused come along. It is to be noted that the applicant lived in Tsing Yi. The flat where the second lot of dangerous drug was found was empty and had no furniture.

5. The applicant gave evidence at the trial. In relation to the first count, he said that there was a Mr. Yu at the time and it was Mr. Yu who had the bag. When the police approached and questioned the applicant, Mr. Yu dropped the bag and ran. The applicant was told to pick up the gift-wrapped brick that spilled from the bag and when he put it back into the bag his fingerprint could have come into contact with one of the bricks. In so far as the second count was concerned, he knew nothing about the dangerous drug in the premises. He rented the flat because his brother was getting married. After renting the flat, he took a Mr. Yu along to look at the premises for redecoration, and he also gave Mr. Yu a set of keys. He admitted he visited the premises on a number of occasions and brought a red box there. On one occasion, he saw a plastic bag being placed in the red box. Mr. Yu told him that he put some glue there to fix the wallpapers and that was what he assumed it to be. His mother also gave evidence that she had given her son $20,000.00 in cash prior to his arrest.

6. The jury returned unanimous verdicts of guilty on both counts.

7. In his home made grounds of appeal, he made a number of complaints. Briefly, they are these. First, the two police officers who arrested him were unable to give a full and clear account of the arrest when they were cross-examined. Second, the fifteen keys should have been seized from him at the time of the arrest but were not seized, and he was only questioned about them much later in Lai Chi Kok Reception Centre. Third, prosecuting counsel led hearsay evidence from Madam Lee. Fourth, in his closing speech, prosecuting counsel pointed out the wrong position of his fingerprint when he was requested to do so by defence counsel. Fifth, prosecuting counsel addressed the jury that the existence of a third person was irrelevant and told the jury to ignore it whereas the applicant says that the third party was vital to his defence, and the exhibits and the evidence of Madam Lee supported this contention. Sixth, although the language used by the judge in his summing up was not unfair to him, the judge was nevertheless wrong to allow Madam Lee to give hearsay evidence; the applicant's evidence was not explained to the jury for their consideration and the judge also failed to consider defence counsel's arguments. Lastly, as a result of the foregoing, the jury was unable to consider the evidence in its true context and resolve the doubts in his favour.

8. Before us, he further alleged that the cautioned statement was given by him involuntarily and as a result of pressure; no expert evidence was called to prove his fingerprint. He repeated the presence of the third party and that the summing up was not clear. And also the judge wrongly directed the jury on the question of knowledge that he knew what were in the paper bag he was alleged to be carrying and in the premises were dangerous drugs.

9. There is no substance in any of these suggestions and we have no hesitation to reject them. The cautioned statement was admitted into evidence after a voir dire and a fingerprint expert was in fact called to give evidence to the effect that the fingerprint found on one of the bricks was the print of the applicant. We need go no further. Suffice to say the judge dealt with all the matters properly with care and his directions to the jury are correct and adequate. We are satisfied that there is nothing from the evidence or the summing up to cause us any anxiety that the convictions were unsafe or unsatisfactory.

10. Accordingly, the application for leave to appeal against conviction is refused.