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Hksar v Ho Yet Han Daphne

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date27 May 2003
Year2003
Judgement NumberCACC631/2002
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000631/2002 HKSAR v. HO YET HAN DAPHNE

CACC000631/2002

CACC 631/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 631 OF 2002

(ON APPEAL FROM HCCC 207 OF 2002)

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BETWEEN
HKSAR Respondent
AND
HO YET-HAN, DAPHNE Applicant

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Coram: Hon Stuart-Moore VP, Stock JA and Jackson J

Date of Hearing: 27 May 2003

Date of Judgment: 27 May 2003

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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 5 December 2002, following a trial in the Court of First Instance before Mr Recorder L. Lok, SC, and a jury, the Applicant, aged twenty-nine, was convicted on count 1 of possessing a variety of dangerous drugs and on count 2 of trafficking in a quantity of powder containing 393.71 grammes of ketamine. The Applicant now seeks leave to appeal against her conviction on each count.

2. Before the trial commenced, the Applicant's co-defendant on the original indictment, Li Wai-hung (Li), pleaded guilty to trafficking in both the quantities of drugs identified in counts 1 and 2 faced by the Applicant. During the trial, Li was called to testify on the Applicant's behalf.

3. This application is concerned with a single point. Mr William Allan, on the Applicant's behalf, submitted that the conviction on each count was unsafe or unsatisfactory because the Recorder failed to give the jury any direction as to their approach to lies in a case where, he alleged, there was a danger that the jury may have believed that a lie told by the Applicant was tantamount to proof of her guilt.

4. We do not need, for present purposes, to recite the facts in any depth. It suffices to say that the prosecution called evidence to show that when the Applicant's flat was searched by customs officers on 31 January 2002, the dangerous drugs were found together with other items of related paraphernalia in the form of weighing scales and transparent plastic bags. The drugs, apart from the large quantity of ketamine in count 2, included small amounts of methamphetamine (ice), nimetazepam, cannabis and ecstasy (also referred to at trial as MDMA and 'fing tau'). These were found on shelves where, allegedly, they could easily be seen without disturbing other items in the flat.

5. The Applicant was the tenant of the flat but it seems she was often visited by Li, her boyfriend, who was in the habit of staying there on about two nights a week. About four and a half hours before the search which led to these proceedings, Li was observed to make a visit to the flat lasting about 25 minutes. On that occasion, customs officers were unable positively to see if either Li or the Applicant, who was with Li when he arrived, were carrying anything with them as they alighted from a car and entered the building to go to the flat.

6. About 20 minutes after Li had driven away, he was arrested in a different vehicle which was found to contain 'ice' and other drugs. Later he was shown the drugs which had been found in the Applicant's flat and he stated they were his.

7. Significantly, the customs officers found that the large quantity of ketamine in count 2, which was found next to some plastic bags and the two weighing scales, was wrapped in a piece of gift paper and foil (Exhibit P42). This package was inside a plastic bag. The Applicant's toe print was found on the foil, part of Exhibit P42.

8. The Applicant's defence was that the drugs were Li's and that during the time Li...

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