Hksar v Ng Chun Wing

CourtCourt of Appeal (Hong Kong)
Judgement NumberCACC424/2015
Subject MatterCriminal Appeal

CACC 424/2015







HKSAR Respondent
NG Chun-wing(吳俊榮) Applicant


Before: Hon Macrae JA in Court
Date of Hearing: 19 July 2016
Date of Judgment: 19 July 2016




1. The applicant was charged with one count of trafficking in a dangerous drug, namely 20.05 grammes of a crystalline solid containing 19.58 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and one alternative count of being a person in charge permitting premises to be used for the unlawful storage of a dangerous drug, contrary to section 37(1)(a) and (2) of the same Ordinance (Count 2).

2. Having pleaded not guilty to both offences before Deputy Judge D’Almada Remedios and a jury, the applicant was, on 27 November 2015, acquitted of Count 1 but convicted of Count 2. He was sentenced to 3½ years’ imprisonment in respect of Count 2 on the same day. On 17 December 2015, the applicant filed a Notice of application for leave to appeal against his conviction.

The prosecution case

3. On 5 September 2013, police officers intercepted the applicant as he was coming out of Room B4, 1st Floor of Wah Sun Building in Mong Kok (the “Premises”). On being searched, nothing illegal was found on the applicant’s person. However, a search of the Premises revealed a quantity of dangerous drugs, later found to be 20.05 grammes of a crystalline solid containing 19.58 grammes of methamphetamine hydrochloride (commonly known as “Ice”). The “Ice” was lying on top of the desk in the Premises, contained in four separate plastic bags together with electronic scales and other small plastic bags. HK$10,000 was also found in the bedroom.[1] It was alleged that under caution, the applicant had said that he “only helped someone to bring drugs ‘Ice’ ”, and asked for a chance.[2] This was recorded immediately afterwards by the arresting officer in his notebook, read to the applicant and signed by him.[3] A post-record was then made, to which the applicant added that the HK$10,000 belonged to his live-in girlfriend.[4] The applicant was eventually allowed to call his wife, during which he asked her to call a lawyer.[5]

4. The prosecution case at trial was that the applicant was living at the Premises as he had paid the rent on three or four occasions, and had the keys to the Premises.[6] The landlady of the Premises, a Madam Lo, testified that it was the applicant who made payments directly to her, and she would speak to him if there were any need to discuss the utilities of the premises. She believed that he was the tenant.[7] A screen which appeared to be a CCTV monitor was also found to be activated in the premises.[8] Given his admissions, the prosecution case was that the applicant had been trafficking in a dangerous drug.

5. The estimated retail value of the drugs in question was HK$12,671.[9]

The defence case

6. The applicant elected to give evidence. The defence case at trial was that the drugs, scales and plastic bags were found underneath the desk inside a folder, and that the applicant had no idea that the drugs were in the flat. The applicant said he was married and living with his two children in Tin Shui Wai. He was in receipt of Comprehensive Social Security Assistance (CSSA) but worked as a decorator on a casual basis.[10] He was a visitor to the flat and only assisted the occupier and his friend, Ah Yee (Madam Ngai Yee), to hand over the rent, which she would give him. The actual tenant of the Premises was Yip Ka-ho, who was named as tenant in the Tenancy Agreement.[11] The applicant said he was at the Premises on that day to help Madam Ah Yee change the water of the fish tank.[12] He would also occasionally do odd jobs or renovation work for Madam Ah Yee for free.[13] He had the keys to the Premises, but not to his flat in Tin Shui Wai.[14]

7. The applicant said that when the officers intercepted him, he was strip-searched. During this process, his mobile telephone had rung and he told the officers he was supposed to be meeting a friend at a dessert shop. Suspecting that the friend might be connected with dangerous drugs, the officers left the Premises to locate the applicant’s friend. 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”. The officers then searched the Premises, where they found the drugs underneath the desk in a black folder. Upon arrest and caution, all he had said was “I don’t know, I want to call a lawyer”. The admission attributed to him had been fabricated by the police, and he was not allowed to talk to a lawyer until after he had signed the notebook and the post-record.[15] He signed the post-record without reading it, and the admission was not read to him by the officer.[16]

8. The applicant did not pay attention to the screen which was apparently a CCTV monitor, but had assumed it was on.[17]


9. In her summing-up, the judge began by explaining the alternative counts on the indictment. She then directed the jury...

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