THE QUEEN v. CHIU KIM WAN

IN THE COURT OF APPEAL

1987, No. 455
(Criminal)

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JUDGMENT

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Silke, V.-P.:

1. The Applicant, Chiu Kim Wan, was convicted in the District Court before His Honour Judge Chism on a count of possession of dangerous drugs for the purpose of unlawful trafficking.

2. On the Charge Sheet, there were four named Defendants of which the Applicant is the first. Of those four, two others were tried at the same time as himself. The 2nd Defendant, Chow Yuet Keung, being ill at the time was tried separately.

3. The other Defendants were charged with direct trafficking and also with a further charge of possession of a separate quantity of dangerous drugs for the purpose of unlawful trafficking.

4. On the evening of 1st April 1987, a party of police officers set up observation at Fuk Wah Street, some were in a building on one side of the road, some were in a building on the other side, some were in a car park in the vicinity and yet others in Fuk Wah Street itself. Outside houses No. 147-151 in Fuk Wah Street three men were sitting at a table and after they were arrested identified as the 2nd, 3rd and 4th Defendants.

5. The police saw, at about 9 o'clock that evening, a man coming up to the table giving the 2nd Defendant some money and going across the road with the 2nd Defendant to where there were two wooden carts parked outside the house No.124. The 2nd Defendant pushed the carts aside and picked up from underneath them a box out of which he took some object which he gave to the other man. The man left. Then at about 9:25 p.m., another Chinese male came up to the table where these men were. He, having handed over money, went with one of them to the carts, he also was given something which he tucked into the sleeves of his upper garment. The man walked away in the direction of Kweilin Street.

6. There was communication between members of the surveillance team and the man was apprehended. That man was the Applicant.

7. He was searched and in his left sleeve was found a packet of dangerous drugs. He was arrested.

8. The drugs with which the others were charged with being in possession for the purpose of unlawful trafficking were contained in 10 packets found in the box, the box to which I have referred as being under the carts. There was evidence of the clothing the Applicant was wearing and of the observation of him and of his almost immediate apprehension.

9. At trial, in evidence, the Applicant denied any of these happenings and said in effect that the police had framed him. Nothing was found on him at the time of arrest and he did not see the packet which he was supposed to possess until he was actually in the police station.

10. As a result of these attacks upon the police, application was made and granted for him to be cross-examined as to his previous convictions. Of this, he now complains.

11. When a defendant makes, either through his counsel in cross-examination or directly in his own evidence, allegations of the kind that were made here, that is that the police went so far outside their duty as to frame him for the offence and to lie in the course of their evidence, the Court is entitled to know the nature of the man who makes such allegations. One method of doing this is to introduce his previous convictions into evidence with the leave of the Court. It lies within the discretion of the trial judge as to whether he does or does not grant such an application. The purpose of introducing convictions is not to prove the defendant's guilt of the offence with which he is charged but relates to his credibility. A defendant who takes the course the Applicant took here places himself at risk. There is nothing to show that the trial judge has, in any way, wrongly exercised his discretion.

12. The Applicant also complains that he was charged with trafficking, and it is noteworthy that in some of the grounds placed before us he now says that he had this packet for his own consumption despite the defence he raised at trial. He was in fact charged with possession for the purpose of unlawful trafficking. The quantity in his possession while small was nevertheless sufficient to raise the presumption that his possession of it was for that purpose. It was for him to rebut the presumption which was raised. He made no attempt to do so in the light of the defence he advanced.

13. The trial judge on the evidence before him was perfectly justified in coming to the conclusion he did and the application for leave to appeal against conviction is refused.

14. As to sentence, the sentence is well within the guideline set out in Chan Chi Ming[1]. The Applicant has an appalling record going back to 1961. He is clearly a drug addict. Two of those previous convictions related to possession of drugs. Had he raised the defence at trial that he was in possession purely for his own consumption, then given the quantity, that might well have been accepted. He did not.

15. In the circumstances of the case, there is nothing wrong on the sentence which was imposed and the application in relation to sentence is also refused.