HKSAR v. LAM LUN KEI

IN THE COURT OF APPEAL

1996, No. 506
(Criminal)

______________

^{____________________}

^{____________________}

J U D G M E N T

^{____________________}

Mortimer, V.-P. (giving the judgment of the Court) :

1. On 5 September 1996 the applicant was convicted before Gall J and a jury of a joint offence of conspiracy to manufacture dangerous drugs and an offence of possessing dangerous drugs. The offences were committed with his girlfriend and the mother of his son. He was sentenced to 8 years imprisonment for the conspiracy and 12 months concurrent for the offence of possession. He applies for leave to appeal against those convictions.

The facts

2. On 3 October 1995, the police were keeping observation upon a flat in Tokwawan. They also had a search warrant in relation to that flat. When they were keeping observation, a man, later discovered to be called Wong, arrived at the flat door. He was interviewed by the police and told to ring the bell. The police observed him doing so. When he did so, there was some conversation between him and it would appear the applicant from inside. The door was opened - but not the grill - and closed again. Later the police tried to get in it. The applicant answered the door and said he did not know whether they were police and that he was going to telephone a lawyer. He closed the door again. Eventually, he said that provided the police would wait for five minutes rather than prise the grill he would allow them in. Indeed, eventually he did so.

3. One of the officers was keeping observation from outside the flat. He saw the girlfriend of the applicant throw two packets out of the window. When the police entered the flat, they found inside paraphernalia - a hammer, pliers, a screw-driver, scissors and blenders - in one of the rooms. In another room they found a small quantity of drugs which was the subject of the second charge.

The trial

4. The case advanced by the Crown against the applicant and his girlfriend was based upon all the circumstances and the things found and seen. Some drugs were thrown out of the window. Articles suitable for manufacturing drugs were found in one of the rooms. A large quantity of caffeine - which is one of the substances which is suitable for diluting heroin - was found inside. Attempts had been made by someone to get rid of the caffeine by flushing it down the toilet. There was found about 23 kilos of caffeine in the flat. Also, when the tools were examined, traces of heroin were found upon some of them. Also, traces of heroin were found in the curtains.

5. There was evidence from an expert, Mr Lee, who spoke of the traces of heroin and the use to which the tools could be put. His evidence was given - as the judge said in summing-up - with great fairness. Often other chemicals would be required for completing the manufacturing process of heroin. The tools themselves were not a complete set. Those were matters which were put before the jury for their consideration. Neither the applicant nor his girlfriend gave evidence as was their right. On the whole of this evidence the jury convicted of conspiracy to manufacture dangerous drugs, and an offence of possessing 4.6 grammes in a room other than where the tools were found.

The Application

6. The applicant raises a number of matters for the consideration of this Court in support of his application. He first makes allegations against his counsel to which his counsel has given detailed replies in writing.

7. The first matter is that he complains that the police put the exhibits into an envelope without obtaining his signature and that his counsel was instructed to ask questions about that but did not.

8. It is clear from Counsel's answer to that allegation that at no time did the applicant give instructions to challenge anything about the seizure or handling of the exhibits. Indeed, those became the subject of admitted facts which were read out in court. Counsel rightly points out that in view of the line of defence - which was that the applicant or his girlfriend knew of nothing incriminating in the flat but they were simply caretakers - that was logical, sensible and consistent with his instructions. Indeed, having regard to the manner in which the applicant fought the case, this was not an issue which in any event could have influenced the verdict.

9. The second matter is that the applicant had the impression that counsel thought that he was guilty and failed to do his best. This as an allegation is without foundation. Counsel says that he fulfilled his duty as an advocate. An examination of the transcript - which we have taken the trouble to read - demonstrates unquestionably that counsel did fulfil his duty in defending the applicant with not a great deal of ammunition at his disposal.

10. The final allegation against counsel is that the applicant says he had a witness whom he wanted to call. That witness was the landlord who rented the premises to him. It was suggested that counsel misled the applicant and persuaded him against calling this witness. To this, counsel says that he has no recollection of such instructions which do not appear in any of his written instructions or any conference notes. However, the matter does not rest there. Mr Hui gave evidence that the lease of the flat was in the name of Mr Lee Wai-leung but a Mr Lam paid the monthly rent. Mr Hui was not able to identify the applicant as the Mr Lam concerned. It was clear that any evidence about the lease presented the greatest danger to the applicant. There is in those circumstances nothing in this ground.

11. We turn to other matters raised. Mr Lee, the expert, gave evidence that often in the manufacture of dangerous drugs where heroin is the base, chemicals are other than those found in the flat are used. Caffeine is not sufficient on its own and the tools themselves were not a complete set. The applicant submits that the judge failed in summing up to bring all these matters to the attention of the jury. In particular that there were many other ways of manufacturing drugs than the ones envisaged.

12. This submission is also without foundation. An examination of the summing-up, shows that although the judge did not deal with every detail of Mr Lee's evidence, the matters raised by the applicant were put before the jury. The judge brought to the attention of the jury the matters spoken to by Mr Lee in general terms. Of course, this followed the address by counsel on the applicant's behalf. There is no basis upon which this Court could give leave to appeal on this point.

13. The last matter raised is this. It is suggested by the applicant that there were two men who ought to have been called to give evidence in this case. Mr Wong, the person who was ringing the door bell and Mr Hui who rented out the premises to Mr Lee. The applicant asks the question why were those two not involved in the trial. That is a question that could not be answered at trial. It cannot be answered now. It is irrelevant. The jury must decide the case on the evidence called. The question with which this Court is concerned is: are there arguable matters upon which this applicant ought to be allowed leave to appeal against his conviction? There are none.

14. The evidence against the applicant, if taken piecemeal, may appear to be weak. But when the whole of the circumstances - which were in front of the jury - are taken into account, it amounted to a powerful case in the absence of any explanation.

15. For those reasons, this application is refused.

16. Application for leave to appeal against sentence is dismissed upon abandonment.