HKSAR v. CHEUNG TAK MOON

CACC 8/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 8 OF 2005

(ON APPEAL FROM DCCC 804 of 2004)

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BETWEEN

HKSAR Respondent
and
CHEUNG TAK MOON (張德滿) Applicant

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Before : Hon Stuart-Moore VP, Woo VP and Suffiad J

Date of Hearing : 23 June 2005

Date of Judgment : 23 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. On 20 December 2004, the applicant was convicted in the District Court, following a trial before Deputy Judge P Li, of traffickingin a mixture containing 11.75 grammes of heroin hydrochloride valued at about $6,000. He now seeks leave to appeal against conviction.

2. The facts were very simple. The applicant was allegedly observed with a packet in his hands at a temporary hawker bazaar in Yaumatei. He was seated in an area where no one else was to be seen. As two Customs Officers approached him, he dropped the packet and whenasked what it contained made no reply. Inside were 5 transparent, resealable plastic bags each containing 10 small packets of heroin.

3. The applicant did not give evidence at trial. His case was presented on the basis that someone else had thrown the packet of drugson the ground.

4. The applicant’s grounds of appeal complain, amongst other things, about the prosecution’s failure to obtain fingerprint evidenceand the fact that he could hardly have been trafficking if no one else was in his vicinity at the time of his arrest.

5. The evidence which the judge accepted gave rise to an overwhelming inference of guilt. There is no basis for the application andit is dismissed.

6. Having given the applicant an opportunity to address us as to why, bearing in mind the total lack of merit in this application,we should not make an order for loss of time, we have concluded that this is an appropriate case in which to order under the termsof section 83W of the Criminal Procedure Ordinance, Cap. 221, that 2 months of the time the applicant has spent in custody pending these proceedings should not count towards the sentencehe is serving.

(M. Stuart-Moore)
Vice-President
(K H Woo)
Vice-President
(A R Suffiad)
Judge of the Court of First Instance

Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.