HKSAR v. CHAN YIU KI

HCMA 606/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 606 OF 1999

-------------------------------------

----------------------

------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------

1. After his trial before a Magistrate sitting in the Eastern Magistracy, the Appellant, Chan Yiu Ki, was convicted of one charge of trafficking in dangerous drugs. The subject matter of the charge was a mixture containing 0.32 grammes of heroin hydrochloride and the Appellant was sentenced to 36 months' imprisonment. He now appeals against both conviction and sentence.

2. The only evidence against the Appellant at the trial was from a police officer posing as a customer who purchased the drugs from the Appellant for $200. This officer gave evidence as PW1 at the trial. According to him, on 20 May 1998 at about 6:45 p.m., he was on under-cover duty at the cooked food bazaar at Mui Fong Street, Western. He approached an unknown person who was playing mahjong with three others at a mahjong table and made known to him that he intended to purchase dangerous drugs. The unknown male took out the drugs in question and handed it to the Appellant who was standing beside the mahjong table. The Appellant asked for $200 from the witness. The money was duly handed over and in exchange, the Appellant gave the drugs to the witness. The witness then left the scene and returned to his safehouse where he reported the matter to his superior.

3. It was only on 21 August 1998, some three months after the trafficking incident, that the Appellant was arrested in his home in Wah Kwai Estate at Aberdeen. At the police station the Appellant was cautioned and interviewed in respect of the present offence. The record of interview was exhibited at the trial. Apart from admitting that he had been to the cooked food bazaar at Mui Fong Street to eat occasionally, the Appellant denied that he was involved in any trafficking activities. At an identification parade held on 3 September 1998, the witness identified the Appellant as the person who had supplied him with the drugs on 20 May 1998.

4. The Appellant elected not to give evidence at the trial. No defence witness was called. The correctness of identification of the Appellant by the prosecution witness was a key issue in this case.

5. In his final address, Counsel for the Appellant reminded the learned Magistrate of the inherent weaknesses in the identification evidence of the case. He was also reminded that an honest witness could be mistaken insofar as identification is concerned. The learned Magistrate was invited to acquit the Appellant on the basis that the identification evidence is so tenuous and inherently weak that the prosecution had not proved the case against the Appellant beyond reasonable doubt. It would also be useful to note here that Counsel specifically addressed the learned Magistrate on the requirements of the Turnbull guidelines and suggested the manner in which he should deal with the issue.

6. At paragraph 4 of his Statement of Findings, the learned Magistrate made the following observation :

"... It was submitted that a Turnbull direction was proper. Having considered the matter, I found it was not a situation in which the principles set out in Turnbull applied." (emphasis added)

Later on at paragraph 5, he said :

"... He [PW1] testified that the appellant had been standing in front of him for about 10 seconds about 1 foot away during the actual transaction. ... He recalled seeing the appellant on other days, both before and after the transaction on 20 May 1998. He testified that he identified the appellant as the trafficker at an identification parade on 3 September 1998, over 3 months after the transaction. He identified the appellant in court. I considered all the evidence. I found that a Turnbull warning was not apposite. PW1 was a professional witness doing a task which required him to observe, take note and commit his activities and contacts to memory. I was alert to the possibility that PW1's identification of the appellant could have arisen by virtue of having seen him on other occasions and that he was confusing him with another. ..." (emphasis added)

Further down the paragraph, he said :

"... I found PW1 to be a strong and reliable witness of the truth. Under all the circumstances prevailing at the time of the DD transaction, I found that PW1's identification evidence of the appellant was strong, reliable and compelling evidence. ..."

He then went on to find the prosecution had proven the charge against the Appellant beyond a reasonable doubt and convicted him of the charge.

7. The only ground of appeal advanced by Mr Loughran, who did not appear in the Court below, was that the learned Magistrate had erred in his approach of the evidence of identification by the police officer in that he had failed to deal with any of the dangers especially associated with such category of evidence.

8. It appears to me to be bizarre that having been alerted to the possible weaknesses of the identification evidence, the learned Magistrate refused to give himself a direction along the Turnbull guidelines. He gave no reasons as to why he found the case was not one which the principles of Turnbull applied, or why he was confident that a Turnbull warning was not apposite. The learned Magistrate was of course entitled to rely on the case of R. v. Ramsden [1991] CLR 295 where it was held by the English Court of Appeal that trained police witnesses are less likely to make mistakes when it comes to identification. The case, however, is not authority for the suggestion that a direction according to the guidelines of Turnbull can be dispensed with altogether in cases where the identification of a defendant was made by police officers. While a Magistrate sitting as judge and jury does not have to adopt a specific formula of words to remind himself of the inherent weaknesses of the identification evidence in a particular case, nowhere in the learned Magistrate's Statement of Findings did he expressly, or by implication, alert himself to such dangers. On the contrary, he refused to give himself any sort of reminder or warning. The manner in which the learned Magistrate dealt with the identification evidence appeared to me to be in total disregard of well established principles of both law and practice.

9. Perhaps the learned Magistrate accepted the evidence of the police officer as unmistakable recognition of the Appellant although it was not expressly stated as such. If that was indeed the case, then the learned Magistrate ought to be reminded of the words of Lord Lowry in the Privy Council case of Beckford and Others v. R. [1993] 97 Cr. App. Rep. 409 at p.415 :

"... The need to give the general warning even in recognition cases where the main challenge is to the truthfulness of the witness should be obvious. The first question for the jury is whether the witness is honest. If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely, is he right or could he be mistaken?

Of course no rule is absolutely universal. If, for example, the witness's identification evidence is that the accused was his workmate whom he has known for 20 years and that he was conversing with him for half an hour face to face in the same room and the witness is same and sober, then, if credibility is the issue, it will be the only issue. But cases like that will constitute a very rare exception to a strong general rule."

Further down the page, it was said :

"... Their Lordships, however, having regard to their conclusion upon the judge's failure to give a general warning, and also because they wish to emphasise that such failure will nearly always by itself be enough to invalidate a conviction which is substantially based on identification evidence, ..."

The Privy Council's decision was of course binding on the Courts of Hong Kong and it was subsequently followed in Tran Duc Cuong v. R., Cr. App. 424 of 1993.

10. In so far that the only evidence against the Appellant is identification by the under-cover police officer, it was incumbent upon the learned Magistrate to address himself on the possible weaknesses of the evidence of the officer and the circumstance under which the purported identification was made. In refusing to give himself a direction along the lines of Turnbull, the learned Magistrate had adopted an erroneous approach to the evidence and the conviction cannot be regarded as safe or satisfactory. It follows that the Appellant's conviction must be quashed and the sentence he is now serving be set aside.