IN THE COURT OF APPEAL
1997, No. 221
Coram: Hon. Power, V.-P., Mayo, J.A. and Wong, J. in Court
Date of hearing: 21 October 1997
Date of delivery of judgment: 21 October 1997
J U D G M E N T
Mayo, J.A. (giving the judgment of the Court):
1. The Applicant was convicted after a trial before Deputy Judge Lung of trafficking in a quantity of dangerous drugs. To be specifiche was convicted of trafficking in 75.94 grams of a mixture containing 33.61 grams of heroin hydrochloride. He was sentenced to fiveyears’ imprisonment. He now seeks leave to appeal against both his conviction and sentence.
2. It was the prosecution case that two police officers who were on duty to ambush a suspected trafficker in drugs at Kwai Chung sawthe Applicant and another man walking towards them. When they got nearby the men suddenly started to run away. Each police officerpursued one of the men. After a chase one of the men, who it subsequently transpired was the Applicant, tripped and fell down. Hewas thereupon apprehended by the police officer. He was searched and the dangerous drugs referred to in the charge were found onhim.
3. Back at the police station the Applicant admitted that the dangerous drugs were his but claimed that he had them for his own consumption.
4. The Applicant gave evidence at his trial. His evidence was to the effect that the dangerous drugs were planted on him by the police.The explanation he gave for his statement was that he had only made it after being subjected to assaults by the police. Accordingto him a police officer had said that if either he or his friend admitted possession of the dangerous drugs, the other man wouldimmediately be released. It was in these circumstances that he had admitted being in possession of dangerous drugs for his own consumption.
5. There was medical evidence that when the Applicant was examined by a doctor he was found to have some bruises and abrasions on hisbody. A report was made to CAPO.
6. The Judge carefully considered all of the evidence and was satisfied at the appropriate level that the prosecution had proved thecase.
7. Ground 1 contains criticism of the basis upon which the Judge considered all of the evidence. It was contended that having regardto the medical evidence and the complaint to CAPO, the Judge should not have been prepared to accept the prosecution evidence.
8. It needs to be said that all of the matters were entirely within the realm of matters which lie for determination by the Judge. TheApplicant has not demonstrated any good reason for interfering with the findings of fact which were made by the Judge.
9. The 2nd Ground is that there was insufficient evidence to enable the Judge to draw an inference that the Applicant must have hadthe dangerous drugs for trafficking.
10. It is apparent from the Judge’s reasons for verdict that he carefully considered the cases which were cited to him on this subjectat the trial.
11. Having regard to the quantity of heroin involved, it is not surprising that the Judge was able to draw the inference that he did.
12. This conviction was neither unsafe nor unsatisfactory. The application for leave to appeal is dismissed.
13. The Applicant complains that the sentence of five years’ imprisonment was excessive. Before us medical evidence was produced to theeffect that the Applicant is suffering from some ailments of his liver which require medical attention. Although he does appear tobe receiving treatment for this in prison, we would notwithstanding this again draw the authority’s attention to the fact he doesneed this treatment. However, considering the sentence as a whole, it needs to be said that this was a lenient sentence. For a quantityof dangerous drugs of this amount a considerably higher sentence could properly have been imposed.
14. The Applicant does not have a good record and there were no compelling mitigating factors. The sentence was neither manifestly excessiveor wrong in principle and this application is also dismissed.
Mr. D.G. Saw, S.C. & Mr. Simon Tam, G.C. (DPP) for Respondent
Mr. David Mackenzie – Ross (DLA) for Applicant (re: conviction)
Tang Wai Fat Applicant in person (re: sentence)