HKSAR v. CHAN KING HEI

bjbj ---------------------- Before: Hon Lunn JA, Beeson and M Poon JJ Date of Hearing: 5 June 2013 Date of Judgment: 5 June 2013 Date of Reasons for Judgment: 20 June 2013 -----------------------------------------------------

R E A S O N S F O R J U D G M E N T ----------------------------------------------------- Hon M Poon J (giving the reasons for judgment of the court): The applicant, who was unrepresented, sought leave to appeal against his conviction by Deputy Judge Longley in the District Court of a single offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Having dismissed his application, we indicated that we would hand down our reasons in due course. That we do now. The charge The charge alleged trafficking in a dangerous drug on 4 April 2012, in respect of 37.41 gm of a powder containing 29.97 gm of ketamine whilst outside Ground Floor, Shek Hing House, Shek Lei (I) Estate, Kwai Chung, New Territories. The prosecution case The prosecution case was that the applicant had been stopped shortly after 3 am at the stated location on the day in question. He was in the company of a female, Yuen Sze wan, and another male. PC 34015 ( ) testified to the effect that the applicant was seen holding a golden coloured cardboard box wrapped in cellophane containing the health food it purported to contain and two packets of ketamine subject matter of the present charge, walking with the others at a quick pace. He said that the applicant holding the box in his right hand and concealing it by putting his right hand inside the left front

of the unzipped jacket he was wearing. In response to being arrested and cautioned in respect of the offence of unlawful possession of dangerous drugs, the applicant said that he had nothing to do with the box and he did not know there were dangerous drugs inside. He claimed to be carrying the box for Miss Yuen and that he was unaware of its contents. The defence case The applicant gave evidence. He said he came to know Miss Yuen several days prior to that day. Miss Yuen went to his hawker stall at about midnight and after he closed his stall, they had a night snack with Ah B who worked at the stall next to his. They then took a taxi to that location. He was only holding the box which belonged to Miss Yuen when they alighted from the taxi. He denied ever concealing the box inside his jacket as described by PW1. He claimed that he was told by PW1, after being video interviewed, that Miss Yuen had denied her involvement and that one of them should shoulder responsibility. The reasons for verdict The judge stated that he found the evidence of the applicant about how he came to be holding the box containing the drugs untrue. He found it implausible that the applicant would travel with others to a place he did not know to play mah jong at that time of the day, especially after having worked the previous day and just closed up his stall. He disbelieved the applicant s explanation

that the primary purpose of going there was to introduce Ah B to a female, as he only told the court this for the first time under cross examination. The judge found there was no reason why the applicant did not ask Ah B to confirm his account as to the ownership of the box when, according to the applicant s evidence, Ah B was all along present and should be able to do so. The judge also found that the applicant was making up evidence when he said in his video interview that he did not know what the box contained, whilst under cross examination, he said that he did discuss with Miss Yuen about the contents of the box when they were having a night snack. By contrast, he found PW1 to be an honest and reliable witness. He accepted his account of the event and found that the applicant had knowledge of the drugs in the box and was in possession of them in the manner, time and place as described by PW1. In light of those findings of fact, the judge was satisfied beyond a reasonable doubt that the applicant was in possession of the drugs for the purpose of unlawful trafficking. The judge came to that conclusion having regard to all the facts in the case but in particular to: (1) the quantity and packaging of the ketamine; (2) the street value of those dangerous drugs, namely $4,377.00; and the location and time he was found to be in possession. Grounds of appeal against conviction The

applicant sought to advance home made grounds of appeal against conviction that are encompassed in an annexure to Form XI. We discerned broadly 3 main grounds: (1) In his first ground he complains that the judge failed to consider or place sufficient weight on the fact that he had told the police officer on the spot that he was only carrying the box for Miss Yuen and he had no knowledge that there were drugs inside; (2) In his second ground he complains that he was not made aware of what Miss Yuen and Ah B told the police in their respective video recorded interviews, and the court erred in not requiring either one or both of them to attend court to clarify the ownership of the box, thus depriving him of the chance to cross examine them; and (3) By Ground 3 it is submitted that the court erred in not watching the video recorded interview of either Miss Yuen or Ah B, which was a procedural irregularity. The respondent s submissions In her written submissions Miss Lam, for the respondent, submits that the reasons for verdict show that the judge was fully aware of the applicant s reply to PW1 that the box belonged to Miss Yuen. It was also submitted that counsel representing the applicant in the court below would have prayed in aid the video recorded interviews of either Ah B or Miss Yuen should their contents be of any real assistance to advance his Defence. Lastly, the

respondent submitted that as the applicant was intercepted whilst holding that box containing the drugs, the real issue was whether the applicant was aware of its contents. Having accepted the evidence of PW1 as to how the applicant was concealing that box inside his jacket, and the applicant s own statement in his video recorded interview that he had no drug taking habit, the judge was entitled to conclude that the applicant had the drugs in his possession for the purpose of trafficking. Hence, it was submitted, that the conviction is neither unsafe nor unsatisfactory, and the application for leave to appeal against conviction should be refused. The application for leave to appeal against conviction The applicant was caught handed . He was carrying a box which contained two packets of ketamine. The reasons for verdict demonstrated a comprehensive analysis of the evidence. The judge did take in account of the applicant s initial response when first taxed with the allegation. It is clear that by claiming that he had just alighted from a taxi and had picked up and carried the box in accordance with the instructions of Miss Yuen, the applicant was simply trying to distance himself from the knowledge of the drugs. That piece of evidence went directly contrary to the evidence of PW1 that the applicant was walking at a quick pace and chatting with the others. The judge rightly

rejected the applicant s evidence. Clearly, the evidence against the applicant in respect of the charge he faced was overwhelming. The way he was seen hiding the box inside his jacket also lent support to establishing his knowledge of the existence of dangerous drugs. The applicant is misconceived in advancing his second and third grounds of appeal. We shall deal with these two grounds together. In an adversarial system, the calling of witnesses is largely in the hands of the Prosecution and the Defence. It was submitted by the applicant that the judge should have received evidence from Ah B and Miss Yuen. It was brought to the court s attention that a request had been made by those representing the applicant in the court below to the Prosecution for disclosure of unused material, in particular, the video recorded interviews of Miss Yuen and Ah B. Those records and transcripts were indeed sent to the applicant s solicitors well before the commencement of trial in the District Court. It was a matter for the Defence, not the court, whether to call either of them to give evidence. Whilst the applicant explained to this court that he was unable to locate Ah B prior to his trial, this clearly went against his own evidence, set out by the judge in para 52 of his Reasons for Verdict (page 13, Appeal Bundle) to the effect that after the applicant was released on bail, he was approached

by Ah B but it did not occur to him to ask Ah B to confirm who had possession of the box before they alighted from the taxi. Neither Miss Yuen nor Ah B was jointly charged with the applicant. There was no basis on which their out court statements were admissible in evidence. Not surprisingly, no application was made to admit that evidence. There is no merit whatsoever in any of the various heads of appeal that the applicant seeks leave to argue. The judge had canvassed the issues thoroughly and concluded that the prosecution evidence was to be believed and the applicant s evidence was not. We do not think that his reasoning can in any way be impugned. His conclusion that the applicant had knowledge of the drugs and was in possession of such for the purpose of trafficking could not be faulted. Accordingly, we refused the application for leave to appeal against conviction. (Michael Lunn) Justice of Appeal (C-M Beeson) Judge of the Court of First Instance (M Poon) Judge of the Court of First Instance Miss Vinci Lam SADPP(Ag), of the Department of Justice, for the respondent The applicant appeared in person

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