IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 424 OF 2015
(ON APPEAL FROM HCCC NO. 1 OF 2015)
||NG Chun-wing (吳俊榮)
|Before : Hon Lunn VP, McWalters and Pang JJA in Court
|Date of Hearing : 22 November 2016
|Date of Judgment : 22 November 2016
|Date of Reasons for Judgment : 25 November 2016
REASONS FOR JUDGMENT
Hon Lunn VP (giving the Reasons for Judgment of the Court) :
1. By a notice of renewal filed with the Court on 29 July 2016 the applicant sought leave to appeal against his conviction on 27 November 2015, after trial by Deputy High Court Judge S. D’Almada Remedios and a jury of a count of being a person in charge, permitting premises to be used for the unlawful storage of a dangerous drug on 5 September 2013, namely 19.58 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (Count 2). That count was alternative to a count of unlawfully trafficking in the same dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 1), of which the applicant was acquitted by a verdict of the jury. We refused the application and said that we would give our reasons in due course. That, we do now.
2. On 19 July 2016 Macrae JA refused the application for leave to appeal, giving detailed reasons for his determination.
The prosecution case
3. At about 15:00 hours on 5 September 2013, police officers intercepted the applicant as he came out of Room B4, 1st Floor of Wah Sun Building, 6-20 Yin Chong Street, Mong Kok, which premises they had kept under surveillance. As he came out of the premises, the applicant left the wooden door and metal grille ajar and looked to the left and the right. PC 58648 advanced towards the applicant, identified himself as a police officer and showed him his police warrant card. A search of the applicant’s person revealed nothing of significance. Then, PC 58648 showed the applicant a search warrant in respect of the premises from which he had emerged. PC 58648 and PC 12212 testified that having entered the premises, together with the applicant, they saw on top of a desk in the living room, into which room they entered through the front door, four plastic bags containing a white crystalline substance, which they suspected was dangerous drugs, together with electronic scales and other small plastic bags. On analysis the white crystalline substance was determined to be the 19.58 grammes of Ice, the subject of the counts on the indictment. It was an admitted fact that the dangerous drugs were “valued” at $12,671.  It was the prosecution case, that keys to the wooden door and metal grille of the premises were found inside the premises.
4. PC 58648 testified that at 15:05 hours he had arrested the applicant on suspicion of unlawfully trafficking in dangerous drugs and cautioned him. PC 58648 said that in responsethe applicant had replied, “I only carry or bring ‘Ice’ for somebody. Please give me a chance”. He said that he recorded that statement in his notebook immediately afterwards and gave it to the applicant to read. Then, at his invitation, the applicant signed that entry in the notebook.
5. PC 58648 said that at the conclusion of a search of the premises, at 16:25 hours, he had made a post-record of the events in which, inter alia, he recorded once again the applicant’s response to having been arrested and cautioned. The applicant signed that entry, as he did in the statement that he had read the entry and did not require any change to the record. Next, the applicant copied out a declaration to similar effect, which PC 58648 had given the applicant. Finally, PC 58648 recorded the applicant’s assertion that the $10,000 that the officers had found in a search of the premises “belonged to his live-in girlfriend”.
6. The landlady of the premises, Madam Lo, acknowledged that the tenant described in the tenancy agreement was Yip Ka Ho, not the applicant. However, she testified that the applicant had made payments of rent directly to her. Also, she said that he was present when a group of people came to rent the premises. Moreover, she said that she spoke to him if there was discussion in respect of the utilities of the premises. She issued rent receipts to the applicant. She believed that he was the tenant of the premises.
The defence case
7. The applicant elected to give evidence. He acknowledged that the dangerous drugs and paraphernalia were found in the premises, but he said that they were found underneath the desk inside a folder. He had no idea that there were dangerous drugs in the premises.
8. The applicant testified that he was merely a visitor to the flat. He was a married man and lived with his two children in Tin Shui Wai. He assisted the occupier and his friend, ‘Ah Yee’, Madam Ngai Yee, to hand over the rent to the landlady. Ah Yee gave him the money to do so. The actual tenant of the premises was Yip Ka-ho, who was named as tenant in the Tenancy Agreement. The applicant said that he was at the premises on that day to help Madam Ah Yee change the water of the fish tank. Also, occasionally he did odd jobs or renovation work for Ah Yee for free. He worked as a decorator on a casual basis. He accepted that he had the keys to the premises.
9. The applicant said that when the police officers intercepted him, he had closed the wooden door and metal grille of the premises and was in possession of keys to the door and grille. He was taken to a rear staircase and strip-searched. His keys to the premises were taken from him and used to open the wooden door and metal grille of the premises, after which he and two police officers entered the premises. Then, his mobile telephone had rung and he told the officers that he was supposed to be meeting a friend at a dessert shop. Suspecting that the friend might be connected with dangerous drugs, the police officers left the premises to locate the applicant’s friend. However, when they failed to find anyone, the Sergeant told the applicant that he was wasting his time and he would “frame [the applicant] to death”. Then, the officers searched the premises. They found the dangerous drugs underneath the desk in a black folder. The applicant accepted that he had been arrested and cautioned. However, in reply he said “I don’t know, I want to call a lawyer”. The admission attributed to him had been fabricated by the police. He was not allowed to talk to a lawyer until after he had signed the notebook and the post-record. In those circumstances he had signed the post-record without reading it. Further, the admission attributed to him had not been read to him by the police officer.
10. The applicant said that he did not pay attention to the screen of a monitor in the living room, depicted in photographs taken of the scene between 17:40 and 18:20 hours on 5 September 2013.
Grounds of appeal against conviction
11. In written grounds attached to his Form XIII, by which the applicant gave notice of his renewal of his application for leave to appeal against conviction, the applicant contended that he could not hear Madam Lo when she was testifying. Only later had he come to know that her testimony differed from her witness statement. Also, he reiterated his contention that the dangerous drugs had not been found on the table. Finally, he asked rhetorically “Why was the CCTV excluded.”
12. In the grounds of appeal attached to Form XI, by which the applicant gave notice initially of his application for leave to appeal against conviction, the applicant asserted that he did not know there were dangerous drugs in the room and that he did not rent or reside in the unit.
13. In a letter to the...