HKSAR v. KAN CHI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CACC297/98

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J U D G M E N T

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Gall, J. (giving the judgment of the Court) :

1. The Applicant seeks leave to appeal his conviction after trial before Deputy Judge Lugar-Mawson and a jury. He was convicted on 18th May 1998 of one count of trafficking in heroin and one count of possession of cannabis. He was acquitted of one count of possession of heroin.

2. The prosecution case was that on 13th August 1997, he was stopped in the lobby of premises in Mody Road, Tsim Sha Tsui and in the hidden pocket of the waistband of his trousers was found a small quantity of heroin in one packet. He was taken to premises that he occupied on the 5th floor of the building and there, in a desk drawer, was found a transparent plastic box. In the box was found 11 separate packets of heroin and a packet of cannabis. Under the transparent plastic box was found a letter scale and a small electronic scale capable of making very fine measurements. With the packets in the transparent plastic box were found 15 empty small transparent resealable plastic packets of the same type as the 11 used to contain the heroin. The heroin and cannabis found in the transparent plastic box were the subject matter of the counts upon which the Applicant was convicted.

3. Although the Applicant, as was his right, did not give evidence at the trial, it was clear from the Defence, as put by his Counsel, that he claimed no drugs were found upon his person. It was further clear that it was his case that he accepted that the drugs were found in the plastic box in a desk drawer at the premises but that he put the prosecution to proof that he had possession of those drugs, knowledge of the nature of the drugs, and in respect of the heroin, that he had trafficked in those drugs.

4. The first ground of appeal relied upon is that the conviction on the second and third counts were inconsistent with the acquittal in respect of the first count -- all three counts being based on the evidence of the same police officers.

5. In his summing-up, the trial judge referred in detail to all of the evidence. It is clear from the verdict of the jury that they must have disbelieved the police evidence as to the finding of the drugs on the person of the Applicant. That can be the only reason why they acquitted on the first count.

6. The case, however, was different in respect of the second and third counts. The acceptance in the trial by the Defence, by the manner in which the Defence was carried out, of the existence in the drawer of the desk, in the plastic box, of the heroin and the cannabis took that discovery outside the evidence of the police witnesses. The jury were entitled to look at that concession, although not made specifically but by implication, and rely upon it to differentiate between the first count on the one hand, and the second and third counts on the other. From that it is clear that there is not an inconsistency between the acquittal and the convictions.

7. The Applicant further relies upon homemade grounds of appeal which were annexed to his application for leave, the first of which was that according to the law, the prosecution cannot prove that he is guilty beyond reasonable doubt.

8. The learned trial judge in his summing-up to the jury very fairly placed all the evidence in the case before the jury, and placed it on the basis that unless they were sure of the guilt of the accused (the Applicant in this appeal) they could not convict. We are satisfied that the law as to the standard of proof and the burden of proof was properly put to the jury.

9. The second ground was that there were discrepancies and doubts between the evidence given by a prosecution witness (the police officer who arrested the Applicant) under cross-examination in Court and the entries in his own notebook. These discrepancies were dealt with in detail by the trial judge in his summing-up. They were placed before the jury as discrepancies in the evidence of the Constable and the jury was told in terms that such discrepancies should be taken into account in assessing the credibility of that witness. This was a matter for the jury and the judge can in no way be said to be in error.

10. The third ground of appeal is the prosecution did not provide any fingerprint evidence to prove that the Applicant had touched the drugs. The jury reached their verdict upon the evidence which was before them. They considered, upon the directions given to them as to the law, that the evidence was sufficient to make them sure. The absence of fingerprint evidence is not a matter which can give rise to a ground of appeal in this case.

11. The fourth ground of appeal was that when the Applicant was arrested by the police, the relevant persons at the scene were not taken back to the police station for statement taking and investigation was not made to ascertain whether they were relevant to the case and that this was not fair to the Applicant. Again, the evidence which was available in the prosecution was properly put by the trial judge to the jury in his summing-up. The manner in which the investigation was made by the police was tested in cross-examination by Counsel at the trial, and all matters which could properly have been placed before the jury were in evidence for them to consider. There is nothing in this ground of appeal.

12. The fifth ground of appeal is that a prosecution witness, Ms Chan, has mentioned that all along there were males and females frequenting the material flat to stay overnight. Again, this matter was put fully before the jury by the trial judge in his summing-up. Ms Chan gave evidence that other persons were present and the jury had that squarely before them when they reached their conclusion that the inference to be drawn was that the Applicant knew of the presence of the drugs, had them in his possession and in respect of the 11 packets of heroin, had them for trafficking. There is nothing in this ground of appeal.

13. The sixth ground was that the trial judge erred in law by failing to lead the jury correctly and appropriately as to the doubts in the evidence of the prosecution witness. In his very fair summing-up, no criticism can be levelled at the trial judge that he in any way tended to lead the jury towards one verdict or another. He fairly and appropriately set out all those matters which may have given doubt in the minds of the jury to the evidence of the prosecution. Proof of that, if it were needed, can be found in the acquittal of the Applicant in respect of the first count on the indictment. Clearly the doubts raised in the evidence, about which the jury reminded in the summing-up by the trial judge in respect of that count, had led to that acquittal.

14. The seventh ground of appeal is that in drawing their inferences, the jury did not analyse carefully and consider in detail the evidence given by the prosecution witness and the evidence which is against the Applicant. The jury wrongly accepted the evidence of the prosecution though there are doubts in it. The jury were properly directed in their task. The evidence was placed fairly before them and it is a matter for the jury to reach their decision upon those facts found by them to be true and the law given them by the trial judge. We cannot fault the summing-up in any regard in respect of the allegations in this ground and this ground must also failed.

15. The last ground in the homemade grounds of appeal were that based on the reasons mentioned above, it is very improper and unfair to convict the Applicant of the charge. There is no need to deal specifically with this ground of appeal. There was ample evidence on which to base guilty verdicts.

16. In his address to us this morning, the Applicant raised further matters. He alleged that the evidence was weak and he should not have been convicted upon it, and that the submission of no case to answer should have been allowed. On the evidence as it is set out by the trial judge in his summing-up, there can be nothing in either of these grounds which could warrant the allowing of this appeal.

17. Lastly, the Applicant raised what he referred to as an authority concerning two persons in occupation of premises where one possesses drugs and the other did not. He went on further to say that a person does not open every drawer to check if anything has been placed in it and that he was not the only user of the premises.

18. These are all matters which could have been raised by the Applicant had he given evidence at the trial. They are not matters which can be placed before us by way of address by the Applicant at an appeal hearing. The Applicant, as was his constitutional right, declined to give evidence at the trial and he cannot now come before us to try and remedy what he may now see as a shortfall in his case by trying to give the evidence before us.

19. We are satisfied that the summing-up by the trial judge is unassailable and that each ground of appeal must fail. The application for leave to appeal against conviction is refused.