HKSAR v. CHIN TAK HOI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.754
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 24th November 1997, this Applicant was convicted of trafficking in a mixture containing 38.11 grammes of heroin hydrochloride. This followed a trial before Deputy Judge Duggan who then sentenced the Applicant to 6 1/2 years' imprisonment. He now seeks leave to appeal against conviction and sentence.

2. This was, as the trial judge observed in his Reasons for Verdict, a very straightforward case. That it lasted for 3 days seems to be largely accounted for by the extraordinary lengths to which cross-examination went of the two main police witnesses PW's 1 and 2. Essentially, these officers testified that the drugs were found in 7 bags inside the Applicant's trouser pocket. The Applicant was alleged to have admitted having white powder for his own consumption. The value of the drugs was admitted to have been $37,000. The judge found PW's 1 and 2 to be frank and truthful about what occurred.

3. Turning to the grounds of appeal, it is convenient to take grounds 1 and 3 together where the Applicant complains, in effect, that bearing in mind the inconsistencies in the evidence, the judge drew the wrong inferences from the evidence when he should have found that there was a doubt about the guilt of the Appellant.

4. It would, in the light of the learned judge's findings, have been wholly surprising if he had reached any other inferences than those which were drawn by him. They were the only sensible inferences to be drawn. We are not here to try again issues that were determined by the judge where he was able to assess witnesses who he had seen and heard.

5. In grounds 2 and 4, the Applicant complains that the defence witnesses should, in effect, have been accepted because they were independent. As he has pointed out to us today, he feels that it was unreasonable for the judge not to have found some doubt about the case in the light of their evidence.

6. The judge dealt in some detail with the defence case. He found that parts of the Applicant's evidence were unconvincing as well as untruthful. The second defence witness was called in support of part of the Applicant's case. He was a man of bad character with a record which disclosed both serious offences and offences of dishonesty. As to DW3, she was the daughter of DW2. The Applicant tells us that she was then aged 14 although the record says 15.

7. In relation to her evidence, the judge had this to say:

"DW2's daughter, DW3, was a poor witness. Her claim not to have discussed the case and indeed her evidence with her father was unbelievable. Her evidence, which should have been short and simple, was contradictory. I refer in particular to her questioning by police about the packets found. Her evidence about the way the police subsequently handled those exhibits inside the flat defied belief.

In the end, I found I could place no reliance on her evidence. I found it regrettable that she should have been used by the defendant and her father in this way, for that was the clear inference to be drawn from her false evidence."

8. We cannot agree with the complaints that are made by this Applicant. The judge appears to have dealt with this case in a way that was thoroughly fair and sensible, and we can find no merit in this application so far as it concerns the conviction.

9. Turning now to sentence, the judge had this to say when addressing the Applicant:

"It would appear that you are 46 years of age and you come before the court with a lengthy history of previous convictions. I note with some concern that you have previously been before the court in 1991 for possession of dangerous drug for trafficking and were sentenced to 8 years' imprisonment. It is unfortunate that after such a lengthy term of imprisonment you did not decide to mend your ways."

10. The judge then referred to the well-known guidelines for sentence in cases such as these. He took as the appropriate sentence 61/2 years' imprisonment which was in the view of this court entirely correct.

11. There is not the slightest merit in this application. For this reason, we refuse leave and will order that two months of the time the Applicant has spent in custody awaiting this hearing will not count towards his sentence.