HKSAR v. NG TING CHEE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.583
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. On 4th September 1997, this applicant was convicted in the District Court of one charge of trafficking in a dangerous drug. This particularized that he, on 14th May 1997, outside Room 221, Block 40, Shek Kip Mei Estate, unlawfully trafficked in 25.23 grammes of a mixture containing 24.74 grammes of heroin hydrochloride.

2. The offence was discovered as a result of a police ambush. On the morning of 14th May at about 5:52, police officers were keeping surveillance over premises on the second floor of Block 40. Two police officers who gave evidence said that they saw the applicant leave Room 221 and that they then intercepted and searched him and found the drugs in the pocket of his shorts which he wore beneath long trousers.

3. The prosecution case was that he had that relatively large quantity of drugs because he was intending to traffic in them.

4. The applicant gave evidence that he was an addict, that on that morning he had run out of drugs, that, because of this, he had gone out to meet his supplier and had bought some drugs from him, and that he was intercepted when he was on his way back to his flat.

5. Deputy Judge Wright, in his Reasons for Verdict, said:

"I do not accept the defendant's version that he had awoken, contacted his dealer, his dealer had responded to his paging a call, he negotiated the purchase and that this had all been done together with delivery effected and payment made within the short time frame that the defendant claims.

The two prosecution witnesses, as well as other police officers, had been maintaining observation on the defendant's premises for a number of hours prior to these events. I accept the evidence of PW1 that during the period of observation, no one else had been seen entering or leaving the premises and that the defendant leaving the premises close to a 6 am was the first sign of movement that involved those premises.

I am conscious of the fact that the defendant is a drug dependent and apparently has been for some years. I am also conscious of the fact that it probably is cheaper to buy drugs in bulk than packet by packet individually. However, in the present circumstance, I find that the defendant was leaving his premises at approximately 6 am. He was fully dressed with the drugs contained in the pocket of a pair of shorts worn beneath long trousers, that those drugs were packaged and contained inside a plastic bag which, in itself, contained six plastic bags and that the drugs were mixed in plastic and paper wrappings.

In these circumstances, it seems to me that the only inference which the court can arrive at is that those drugs were possessed by the defendant with the intention of their subsequent sale or disposal to others. As a consequence, the defendant is found guilty as charged."

6. In his initial grounds, the applicant says that there were major discrepancies between the evidence of the first and second witness and thus there were lots of doubts in the case. The trial judge was aware of discrepancies and dealt with them in the following way:

"The two police officers who testified indicated that they had been maintaining watch from a staircase near to Flat 221 where the defendant resided. Their evidence is that the defendant was seen to walk out of Room 221, whereupon he was approached and intercepted by them.

PW2 explained that their positioning on the staircase was to lay ambush whilst other police officers were keeping observation from another place. He says that he saw the defendant emerge from the flat and was also told this by another colleague who was in the other observation post. Although differently phrased to the way PW1 explained what was going on, I do not find that there is any conflict in their evidence over this aspect of the matter."

7. The judge was clearly mindful of discrepancies and was satisfied that they were not in any way material.

8. The second ground raised by the applicant is not a ground at all. He says that police officers, after he had been arrested, indicated to him that he would be given a sentence of two years. Even if that did occur, and we are by no means satisfied that it did, it is of no real moment as he pleaded not guilty and contested the charge.

9. In the third ground, he suggests that his criminal record was read to the trial judge before he was convicted. He has, however, now told us that what occurred was that, at the bail application, his criminal record was revealed to the judge hearing that application. It was perfectly proper that that was done. It is frequently done in bail applications in order to place the judge in full possession of the facts which he has to consider when determining whether or not the person is the sort of person who should be given bail or who might be likely to abscond. There is nothing in that ground.

10. The application in his additional grounds says firstly that the trial judge did not consider that "the second prosecution witness did not eye-witness the applicant coming out from his residence". That does not correctly state the facts. The facts, as set out by the trial judge, were as follows:

"He (PW2) says that he saw the defendant emerge from the flat and was also told this by another colleague who was in the other observation post."

It is, therefore, not correct to suggest that he did not himself see the applicant leave the flat. There is nothing in this ground.

11. In his second supplementary ground, he suggests that the judge had indicated that it was not a matter of importance whether the defendant was "returning to or coming out from the residence" when intercepted. Again, this incorrectly states the position. What the trial judge said was:

"It does seem to me to be particularly relevant as to whether the defendant was returning to or departing his premises at the time he was intercepted."

The trial judge was in no doubt as to the importance of that matter and, indeed, when his judgment is read as a whole, it is plain that it was a matter to which he paid particular attention and upon which he placed particular weight.

12. The third of the additional grounds appears to suggest that as there was no direct evidence of trafficking the conviction was unsafe. The trial judge was fully aware that there was no direct evidence of trafficking. Indeed he said so in terms. The offence was proved by inference from the facts that were established and, in particular, from the amount of dangerous drugs found on the applicant's person. The trial judge very carefully considered the evidence before drawing that inference and it was, we are satisfied, one which was clearly open to him properly to draw.

13. In his final ground, the applicant says that the judge, after knowing that he was a drug addict, drew a prejudicial view against him. He suggests that this fact of his addiction was not supported by evidence. This turns the matter around in a completely illogical way as it was the applicant's defence that he was an addict and that he had the drugs in his possession for his own consumption. What the trial judge said was:

"I am conscious of the fact that the defendant is a drug dependent and apparently has been for some years. I am also conscious of the fact that it probably is cheaper to buy drugs in bulk than packet by packet individually."

The judge was here considering the facts in the most favourable light for the applicant. He was weighing whether or not there might be anything in the applicant's assertion that he had the drugs for his own consumption given that he was, in fact, a drug addict. There can be no question of any unfairness or prejudice arising out of those observations. There is nothing in this last ground.

14. The application is without merit and it is dismissed.