R v. CHAN SHEUNG KUEN

IN THE COURT OF APPEAL

1996, No. 375

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted of one count of trafficking in dangerous drugs and one count of being in possession of a poison included in Part I of the Poisons List after a trial before Her Honour Judge Chua. He now seeks leave to appeal against his conviction. He also sought leave to appeal out of time against the total sentence of 6 1/2 years' imprisonment imposed upon him in respect of these offences but we are now informed that he has abandoned this latter application.

2. The facts were quite simple. The applicant was driving a motor car in Portland Street, Mongkok in the early hours of the morning of 11 August 1995. Some police officers stopped him and informed him that they suspected that he was in possession of dangerous drugs. This being the case they proposed to search him and the car he was driving. One of the officers who was PW3 in the trial searched his person and found nothing. This officer then inquired whether the motor car belonged to him. The applicant replied in the affirmative and went on to say that although the vehicle belonged to him it had not yet been registered in his name. He gave the officer a piece of paper containing information relating to the ownership of the car which later became exhibit P5 in the trial.

3. A search was then conducted of the vehicle. Six plastic bags were found under the driver's seat of the car. One of the bags contained white powder and the other five a crystalline substance which subsequent chemical analysis revealed to be ephedrine hydrochloride. The officers inquired what these materials were and according to the prosecution the applicant gave no reply concerning the white powder but said that the contents of the other bags were food seasoning for use in the catering trade. The officers also found a white glove and a blue notebook containing detailed figures and other particulars.

4. The applicant said he used the glove when he repaired the car and the information in the notebook related to workers' salaries. One of the other police officers then arrested the applicant and cautioned him. In response the applicant said "I understand. I bought the drugs for my own consumption. I thought it would be cheaper if I bought it all at one time."

5. Later at the police station a post record was made of this exchange and further questions were put to the applicant. From the replies to these questions it emerged that the applicant had acquired the dangerous drugs from an unidentified man who he knew as Ah Shing for $7,000. Also the reason why registration of ownership of the car in question had not been effected was that 17 hire purchase instalments still remained outstanding.

6. The applicant denied that he had given the police the information contained in the statement. The judge gave reasons why she had been satisfied at the appropriate level that the applicant had indeed made the statements attributed to him.

7. So far as the dangerous drugs were concerned it was established that the white powder which had been found was 42.47 grams of a mixture containing 36.69 grams of heroin hydrochloride. It was an agreed fact that the street value of these drugs was in the vicinity of $70,000.

8. The case run by the defence was that the applicant was not the owner of the car. He accepted that there had been negotiations between himself and another person for the purchase of the car. He claimed that on the evening in question he was again test driving the car with a view to purchasing it. This evidence was at variance with the evidence of the registered owner of the car and the car dealer who claimed to have sold it to the applicant.

9. Also it could only be reconciled with the documentary evidence available at the trial if the signature of the applicant on one of the two documents evidencing purchase was a forgery as was claimed by the applicant.

10. Reliance was also placed upon extensive cross-examination of the prosecution witnesses in the hope that any discrepancies in the evidence of witnesses might cast doubt upon the prosecution case.

11. One of the matters which was ventilated in the cross-examination of witnesses was the fact that one of the police officers was able to give evidence concerning a handbag which the applicant had been holding whereas another one was unable to recollect this. This was a matter of some significance as $34,000 odd in cash was found in the handbag. After a consideration of the relevant case law the judge concluded that she was able to take cognisance of the fact that the applicant's possession of this money was a factor she could weigh in determining whether the applicant had been trafficking in the dangerous drugs.

12. The applicant has lodged lengthy grounds of appeal. It is not necessary to consider and analyse these grounds in detail as all that they amount to is a commentary upon the evidence which was before the judge and a submission that for the reasons which are given the judge should have rejected the prosecution case.

13. Needless to say there can be no question of all these issues being retried on an appeal.

14. There is however an exception to this. Complaint is made that the judge intervened unduly in the proceedings and disrupted the flow of the case. We have examined the record carefully and have come to the conclusion that the interventions were justified and that the applicant received a fair trial.

15. No valid reason has been given why the findings of the judge should be interfered with. The case against the applicant was overwhelming. The judge was satisfied that the case against the applicant was proved beyond a reasonable doubt and it is hardy surprising that this should have been the case.

16. This application is dismissed.