THE QUEEN v. LO CHONG WING

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JUDGMENT

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Jones, J.

1. This is the judgment of the court. LO Chong-wing (the applicant), seeks leave to appeal against his conviction on the 18th January 1989 by Judge Moylan at the Wan Chai District Court of a charge of possession of dangerous drugs for the purposes of unlawful trafficking, contrary to Section 7 of the Dangerous Drugs Ordinance. He was sentenced to 6 years imprisonment, but against this sentence there is no application for leave to appeal.

2. The applicant was jointly charged with KOON Chi-wah (1st defendant) who was named as the 1st defendant that on the 22nd October 1988 at the departure level of the airport, at Kai Tak, of being in possession of 645.88 grammes of a mixture containing 592.51 grammes of salts of esters of morphine for the purposes of unlawful trafficking. The 1st defendant pleaded guilty and was sentenced to 5½ years imprisonment.

3. The facts reveal that the applicant, the 1st defendant and another person named To had on the 14th October 1988 booked tickets for a five day tour to Vancouver. On the 16th October 1988, the applicant and the 1st defendant went to a department store in Nathan Road where the 1st defendant purchased a "Caesar" black and white jacket. At the time of the purchase the 1st defendant requested that an alteration be made to the sleeves and was told to return to collect the jacket a few days later. In fact, it was the applicant who subsequently collected the jacket on the 1st defendant's behalf.

4. It was at about 10.20 a.m. on the 22nd October 1988, after the three men had checked in at the airport and had passed through Immigration, that a customs officer approached the lst defendant in the transit lounge and requested a body search. Dangerous drugs were discovered concealed in the shoulders and lining of the jacket, to which I have referred, that the 1st defendant was wearing, and also strapped to his body by adhesive tape. The three men were then arrested.

5. The applicant was found to have in his possession keys to a flat which was rented to him at City One in Shatin which premises were occupied by a lady by the name of FUNG Yuk-ping. A search was subsequently carried out at this flat where a reel of white thread and a reel of black thread was found which matched thread used for stitching the lining of the 1st defendant's jacket. Three different types of adhesive tape were also found in the flat.

6. The forensic evidence revealed that the tapes at the flat matched that on the packets of dangerous drugs strapped and taped round the 1st defendant's body and upon the packets found in the shoulders of the jacket. Other forensic evidence that was adduced at the trial revealed that parts of polythene bags found at the flat compared with parts of the bags taped to the 1st defendant's body. One portion found at the flat and one on the 1st defendant fitted together and were found to have been part of the same bag. In addition, the price tag and logo of the jacket that the 1st defendant was wearing was also found at the flat. A fingerprint impression of the applicant's right index finger was found on a piece of adhesive tape that was attached to one of the polythene bags containing the dangerous drugs strapped to the 1st defendant's body.

7. The applicant elected not to give evidence at the trial, but called the 1st defendant as a witness on his behalf. His evidence was to the effect that although he had known the applicant for three to four years, the applicant was not aware that he was carrying the dangerous drugs on the date of the commission of the alleged defence. The 1st defendant said that he had the keys to the applicant's flat some days before his arrest and it is clear that he had had access to the flat before the offence. He also stated that the drugs that were attached to his body had been placed there by a person named Ah Keung, and that neither the applicant nor the lady Miss Fung who lived at the flat were present at that time.

8. The trial judge found that the 1st defendant and the applicant had acted in a joint enterprise to transport the drugs found on the 1st defendant's body from Hong Kong to Canada, the drugs having been packaged and placed in the 1st defendant's jacket and on his body at the flat. He disbelieved the 1st defendant's evidence that the applicant was not present when the drugs were attached to his body and also his evidence about Ah Keung who the 1st defendant had said had offered him remuneration and a paid trip to Vancouver if he agreed to take the drugs. The trial judge went on to find that the applicant's fingerprint came to be on the tape at the time when the 1st defendant was being strapped with the packets of drugs.

9. Two grounds of appeal were advanced by Mr Wong, counsel on behalf of the applicant. First, the evidence did not support the judge's finding that the applicant's fingerprint came to be on the tape at the time the lst defendant was strapped with the drugs, and that the applicant was in the flat on the morning of the date fixed for the visit to Canada. Second, the judge convicted upon facts that did not amount to more than suspicion.

10. The nub of Mr Wong's submission was that the evidence against the applicant only amounted to suspicion and he placed reliance upon the words of Huggins, J. in Chan Yuet Kwan & Chan Yiu Kuen v. The Queen C.A. 212/1973 and Lung Siu King v. The Queen C.A. 672/1968. He also referred to Frederick Pearson Moore (1956)40 Cr. App. R. 50 as authority for the proposition that a plea of guilty by one defendant cannot be regarded as evidence against a co-defendant.

11. Mr Wong further submitted that there was no evidence before the trial judge to prove joint possession of the drugs and in support of this argument, he cited R v. Strong and R v. Berry (The Times 26th January 1989). However, we do not consider that the facts in that case are of any assistance to the facts in this case.

12. Essentially the trial judge had to decide upon inferences to be drawn from the facts without any explanation being given by the applicant whom as I have said, did not give evidence. There was no direct evidence as contended by Mr Wong that the applicant knew that the 1st defendant was in possession of the drugs, but the uncontradicted evidence established that the applicant had known the 1st defendant for several years and that he had access to his flat. The forensic evidence relating to the rolls of thread, adhesive tape and polythene bags found at the flat were also clearly linked to the evidence found on the 1st defendant whilst the purchase of the jacket and the purchase of the tickets for the trip to Canada provided further evidence of a joint enterprise. This evidence coupled with the applicant's fingerprint provided abundant evidence from which the judge was entitled to draw an inference of guilt. No evidence was adduced to justify an innocent use of the tape by the applicant.

13. We do not find that the facts in this case merely amounted to suspicion. The only and irresistible inference to be drawn from the evidence was one of guilt. Accordingly, in our judgment the applicant was properly convicted. Treating the application as the appeal, we grant the application for leave and dismiss the appeal.