HKSAR v. LO CHI KEUNG

CACC 546/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 546 OF 1998

(ON APPEAL FROM DCCC 1130/1994)

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

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

J U D G M E N T

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

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of trafficking in dangerous drugs in the District Court after a trial before Judge Fung. Particulars of the offence were:

"LO Chi-keung on the 7th day of October, 1994, at Castle Peak Road opposite Kwok Chu Road Garden, Kwai Chung, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 163.04 grammes of a mixture containing 39.95 grammes of heroin hydrochloride."

2. He was sentenced to 6 years 3 months imprisonment. He now seeks leave to appeal against his conviction and sentence.

3. The facts were relatively straight forward. In the early hours of the morning on 7th October 1994 police officers who were conducting a roadblock signalled a car to stop. They asked the driver who was the Applicant to produce his driving licence. The Applicant said that he did not have his licence or identity card with him. He did however say that he had his passport. He reached into a bag which was beside him to get it. One of the officers asked to see the contents of the bag. Initially the Applicant was reluctant to reveal the contents. On the officer's insistence he let him see inside and the officer saw what he suspected to be dangerous drugs. The officer asked the Applicant what the package was and the Applicant said nothing. The officer then arrested the Applicant and administered a caution. The Applicant then said that the things were not his and that he carried them for others. Later at the police station when a post-recorded statement was prepared additional questions were put to the Applicant and the answers he gave to the questions further implicated him. The Judge was satisfied that the cautioned statement had been made freely and voluntarily.

4. The Applicant went into the witness box and gave evidence. According to him his friend Mr. Ip who was the owner of the car had allowed another friend to leave the dangerous drugs in the car. He disputed the prosecution evidence and said that the dangerous drugs were nothing to do with him.

5. Clearly it was open to the Judge to accept the prosecution evidence and reject the Applicant's.

6. In his grounds of appeal the Applicant claims that the Judge was biased against him and failed to give him the benefit of the doubt.

7. Before us, he asked why no fingerprints were produced. The answer to this is that there was no necessity for this. He also asked why the 1994 case file had not been produced. It was by no means clear what significance attached to this. The prosecution must have had material to enable them to proceed at the 1998 trial.

8. There is nothing in this application and it is dismissed.

9. As to sentence the Applicant claims that the guidelines applicable in 1994 should be adopted. The simple answer to this is that they were. Lau Tak-ming was decided in 1990. This application is also without merit and is dismissed.