HKSAR v. CHEUNG KUNG HANG

CACC459/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 459 OF 2000

(ON APPEAL FROM DCCC NO. 779 of 2000)

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J U D G M E N T

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Woo J.A. (delivering the judgment of the Court) :

There are two applications before us. The first application was made on 7 November 2000 by the defendant for leave to appeal against conviction. The second application is one made on 21 March 2001 for leave to appeal against sentence out of time on the basis that he failed to understand clearly the procedures of appeal and mistook that an appeal against conviction included an appeal against sentence.

2. The defendant was on trial before Judge Pang in the District Court on two charges, namely, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and keeping a divan, contrary to section 35(1)(a) and (2) of the Ordinance. After hearing evidence, the Judge convicted the defendant and sentenced him in respect of the first charge to imprisonment for 5 years and 2 months and in respect of the second charge to imprisonment for 1 year, ordering 4 months of the sentence for the second charge to run consecutively to that for the first charge. The total sentence was 51/2 years.

Conviction

3. The grounds of appeal against conviction are set out in the application for the same. Four grounds are raised, as follows :

(1) While admitting to smoking and possession, the defendant did not traffic in drugs.

(2) The so-called smoking implements such as the mahjong table, the ceramic tiles, etc, were set up by the police. The defendant did not use his residence to operate a divan.

(3) The answers in his statements to the police were made under threat and inducement.

(4) There were doubts in the police officers' statements but the Judge did not give him the benefit of the doubt.

4. At the trial before the Judge, certain facts were admitted by both parties pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221. It was admitted that as from 15 March 2000, the defendant was the tenant of the flat in which the offences were alleged to have been committed, where items containing white substance, later found by the Government Chemist to consist of a total quantity of 12.26 grammes of heroin hydrochloride, had been seized. These items were 19 paper packets, one plastic bag, two other paper packets and a plastic phial. Apart from that, two plastic phials and four plastic bags also seized from the defendant's flat contained caffeine.

5. While the defendant pleaded not guilty to both charges, he admitted to possessing and smoking the heroin found in his flat. His case before the Judge was that as summarized in his first three grounds of appeal. The Judge accepted the prosecution evidence and admitted two records of interview, exhibits P4 and P5, in evidence. The Judge found that the defendant was exercising his free will during the interviews, of which exhibits P4 and P5 were records.

6. Regarding the records of interview, the Judge said:

"The Defendant admitted to have bought the drug partly for his own use and partly for sale to support his addiction. If his customers - his cronies - did not have a place to use the drug he would let them have it before leaving the flat. That was what he said at the scene. In the proper interviews that followed, he confirmed what he said earlier and more. Amongst other things, he said his business hours were 9:00 am to 10:00 pm; that he used caffeine as a cutter and the triangular paper as wrapper; and that his cronies would take their drugs on the ceramic tiles on the folding table using the tin foil."

7. Regarding the rest of the evidence, the Judge said:

"I also refer to the pieces of triangular paper which he [the defendant] said were for adding caffeine. Why was one or two not enough? Why did he need two clips full? As for his claim to be a man of means to support his addiction, that theory was, to say the least, completely shattered in cross-examination. In short, I disbelieve the Defendant entirely. Furthermore, I find the combination of exhibits and their location giving rise to one and only one reasonable inference, ie the Defendant was carrying on a small-scale trafficking business. This is quite independent of his admissions."

8. Regarding ground (4) of appeal, ie, doubts in the police officers' statements and the Judge's failure to give the benefit of the doubt to the defendant, the defendant explained to us that that meant that his statements had been obtained by the police under threat and inducement. That could not possibly be called "doubts" and anyway it is covered by his ground (3). However, in the Reasons for Verdict, it is clear that there were two matters which may be said to be the "doubts" in the police officers' statements or evidence. The first was whether the defendant was asked once or twice about how he used the drugs found in his flat while the police search was going on. It appears that PW1, the officer who questioned the defendant in the flat and who took the two subsequent records of interview, said that he only questioned the defendant once in the flat. PW2, another officer in the search team, however, told the Judge that there was not one but two such exchanges. The Judge had considered the discrepancy and regarded it as not sufficient to raise any reasonable doubt in his mind as to justify the exclusion of the defendant's confessions.

9. The second matter that can be called "doubt" is that in the preamble to exhibit P4, only the drug found in the drawer of a desk inside the bedroom, which was opened with a key from the defendant's trouser pocket, was mentioned, instead of all the items of drugs found in the flat. In dealing with this matter, the Judge said:

"PW1's explanation was that he would only say enough to support the charge and I accept it. After all, the bulk of the drug was in the drawer. Incidentally, there was some drug was [sic] on top of the desk which was also omitted."

10. How the Judge assessed the evidence, and in particular the aforesaid alleged doubts, was a matter squarely within his ambit, being a trier of facts. We do not find anything in his approach or his conclusions that can give rise to any concern. The convictions are neither unsafe nor unsatisfactory. The application for leave to appeal against conviction must be dismissed.

Sentence

11. Regarding the first charge of trafficking in 12.26 grammes of heroin hydrochloride, after taking into account the tariff of 5 to 8 years' imprisonment for 10 to 50 grammes of heroin, as laid down in the R. v. Lau Tak Ming and Ors [1990] 2 HKLR 370, the Judge passed a sentence of 5 years and 2 months on the defendant. Regarding the keeping of a divan, he passed a sentence of 1 year's imprisonment on the defendant, but ordering only 4 months of that to run consecutively to the sentence for the first charge. We do not see anything wrong with the sentences. Indeed, we consider that these sentences are appropriate for the two offences and the totality of 5 1/2 years is beyond criticism.

Conclusions

12. For the above reasons, we dismiss the application for leave to appeal against conviction, and considering that there is no merit in the proposed appeal against sentence, we also refuse to grant leave to appeal against sentence out of time.