THE QUEEN v. LEUNG KWOK YUNG

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J U D G M E N T

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Clough, J.A.:

1. The applicant, who appears in person, seeks leave to appeal against his conviction after a trial in the District Court before His Honour Judge Yeung on a charge of possession of 442.62 grammes of a mixture containing 19.8 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein contrary to section 7 of the Dangerous Drugs Ordinance (Cap. 134).

2. At the trial the applicant was represented by counsel who admitted the following facts on his behalf. On the 16th December 1988 at 30 minutes after mid-night the applicant was arrested by a police officer as the alighted from a taxi in Kowloon City in the vicinity of at video game centre. At the time of his arrest the applicant was carrying a silver coloured plastic bag which was wrapped round a large packet sealed in a transparent plastic bag and containing what was later shown on analysis to be the quantity of drugs mentioned in the charge. When asked by the arresting officer what was in the packet, the applicant gave no answer. When searched subsequently at the police station the applicant was found to have $5,800 on him.

3. Having admitted that the packet of drugs was in his possession at the time of his arrest, the applicant was presumed, pursuant to section 47(3) of the ordinance, until the contrary were proved to have known the nature of the drugs in question. He sought to rebut this presumption by his defence, which was that he was not in fact aware that he was carrying drugs at the material time.

4. The applicant put forward the following explanation for his conduct leading up to his arrest. His girl friend had telephoned him on the night in question at about 11 p.m. and asked him to take a jacket to her at the video centre in the vicinity of which he was subsequently arrested. Before he went out to do this he was rung up by a friend called Ah B who was a toy salesman. Ah B asked the applicant if he was free and if he could taker something to the video centre for him and give it to someone called Ah San whom the applicant had met before at the video centre.

5. According to the applicant he was subsequently given the plastic bag by Ah B in the ground floor carpark of the building in which the applicant lived. The applicant's evidence was that he asked Ah B what was in the bag and Ah B replied that it was some goods of his company. Having received the bag the applicant immediately flagged down a taxi and hurried away as time was running out and he knew the video centre would be closing.

6. As he was in a hurry the applicant only glanced at the bag and could not see what was inside, but he said in evidence that he squeezed it and felt that it was some plastic materials that Ah B was selling. He did not inspect the contents of the bag because he thought that would not be a proper thing to do.

7. The applicant said that when he arrived at the vicinity of the video centre it was closed and he could not see his girl friend. He was then stopped and searched by the police. He explained that he did not reply to the question of the arresting officer about the contents of the bag because he was dumbfounded at that time. He had however told the police subsequently at the police station that he did not know what was in the bag.

8. He explained in evidence that of the sum of $5,800 found on him at the time of his arrest $1,000 belonged to him and the remaining $4,800 had been given to him by his mother for the purpose of helping a relative's daughter when she was getting married in the Chinese New Year. When cross-examined about being given the money so long before Chinese New Year he said he had to buy something for the relative's daughter.

9. Under cross-examination it was put to him that there was no record of the police finding a jacket in his possession when he was arrested. He said that he took his girl friend's jacket to his home and left it there when the police took him back for a search. He said the jacket was still at his home. He had not realised the importance of producing it at his trial.

10. The judge, who saw and heard the applicant, made it clear in his judgment that he disbelieved him and considered he was telling a story that was inherently improbable and unconvincing and one which he was making up as he went along. He rejected his evidence without hesitation and went so far as to conclude that the applicant had been "just lying through his teeth hoping to get away from a very difficult situation after being caught 'red handed ' ".

11. The judge found that the applicant had not rebutted the presumption under section 47(3). He was satisfied beyond reasonable doubt that the applicant had known the nature of the dangerous drugs in his possession. Having regard to the quantity of the drugs involved, he was also satisfied that, in the absence of any evidence to the contrary, there had been no rebuttal of the presumption arising under section 46 of the Ordinance that the possession of the drugs by the applicant had been for the purposes of trafficking. The applicant was accordingly convicted.

12. In his grounds in support of his application the applicant complains that the judge was prejudiced against him and that his judgement was self-contradictory because he found the applicant guilty although he said in his judgment that the exhibits and evidence produced by the police were insufficient to prove him guilty. He contends that the judgment was therefore unfair and unsafe.

13. There is in fact no criticism of the Crown's case to be found in the judgment.

14. Today he has said that he only agreed to admit the admitted facts on advice from his lawyer that it would be beneficial to him. This cannot be a ground of appeal. He also blames his lawyers for failing to advise him to bring his girl friend's jacket to court and failing to obtain evidence from Ah B - this is not a matter for appeal but will have to be pursued in other quarters if he wishes.

15. In our judgment the issue in this case was solely one of the credibility of the applicant. The judge was at pains to give a comprehensive analysis of the evidence and to demonstrate why he considered the defence to be a lying concoction. Having seen and heard the applicant giving evidence the judge disbelieved what was manifestly a fanciful defence. He was fully entitled to do so and he did not misdirect himself in any way.

16. The application is therefore dismissed. It is a hopeless one and for that reason we direct pursuant to section 83W of the Criminal Procedure Ordinance (Cap.221) that the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.