HKSAR v. LEUNG WAI KWONG

HCMA 341/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 341 OF 2001

(On appeal from SPCC 856 OF 2001)

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J U D G M E N T

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1. The appellant, Leung Wai-kwong, was convicted after trial before Mr Ronald Cheung, Permanent Magistrate at San Po Kong Magistracy on 3 April 2001 on a sole count of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. He was sentenced to 22 months' imprisonment. He appeals his conviction, but not his sentence. He was represented at trial and on appeal by Mr Ian Polson of counsel.

2. The facts are very straightforward. In the early morning of 17 December 2000, the police carried out an undercover anti-dangerous drugs operation in a night club, the KK Pub and Cafe, in Chatham Road at Tsim Sha Tsui. The first prosecution witness was a woman police constable who was posing as a customer of that disco. While she was dancing, she was offered dangerous drugs for $1,700. She agreed to buy them and the appellant supplied them to her and took payment for them. She kept him under observation and made a report to her sergeant.

3. Later, no doubt by pre-arrangement, uniformed branch officers came to the disco to carry out a licence check. The woman police officer signalled to them to question the appellant. The signal being that she stood behind him in the queue while the customer's identity cards were checked and wiped her face with a tissue.

4. On 5 January 2001, the woman police officer identified the appellant at an identity parade as being the man who had supplied her with the drugs on 17 December.

5. The drugs in question were ketamine methamphetamine and ketamine hydrochloride, in both tablet and powder form.

6. The appellant's defence was that he had been misidentified; he had gone to the club for fun after attending a friend's wedding banquet.

7. The grounds of appeal as pleaded before me are that the magistrate erred in accepting the evidence of the undercover woman police officer and her colleague, and rejecting the evidence of the defendant: That the magistrate, in his statement of findings, wrongly accepted illogical and improbable prosecution evidence and rejected believable, and reasonable evidence of the defendant in a manner which was contrary to reason and legal principle. And the conviction in all the circumstances is unsafe and unsatisfactory and against the weight of the evidence.

8. This case, like so many others taken on appeal from the Magistracies, revolved entirely around issues of credibility. It has long been accepted by the appellate courts that magistrates, having heard the evidence and seen the witnesses give evidence, are in the best position to judge the facts of the case. And it is on very rare occasions that an appellate court will, and indeed can, upset a magistrate's finding of facts.

9. I, in the Court of Appeal, in the recent case of HKSAR v Lee Hung Shun, Criminal Appeal 626 of 1999 (unreported), said this on the issue of credibility:

"On the issue of the applicant's criticism of the judge's acceptance of the prosecution evidence, this was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The person appointed to resolve issues of credibility is the trier of fact, in the District Court, the trial judge. It is not for an appellate court to usurp his function and the courts have made this abundantly clear."

I also quoted from the case of R v R E Lowe (1961) HKLR 13, at page 82, where Blair-Kerr J said:

"An appellate court would not except in the most exceptional circumstances interfere with a finding which depended upon the credibility of a witness."

10. I also made mention of R v Turnbull (1997) QB 224, a case better known for its dicta on identification evidence, where Lord Widgery, LCJ, heading a five judge bench, in speaking of the Court of Appeal's statutory jurisdiction, said at page 231 of the report:

"We can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to retry cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility, this court will only interfere in three circumstances. First, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence, the jury must have taken a perverse view of a witness, but this is rare."

Section 119(1)(d) of the Magistrates Ordinance, under which I derive my appellate powers, likewise does not authorise me to retry cases. I regret to say this is something which is often forgotten by counsel when advancing grounds for appeal such as those put before me in this appeal.

11. In this case, the magistrate was alive to the issue of the discrepancy in the height descriptions of the defendant against that of the trafficker. It has been advanced to me this morning that he made a very serious error here. In fact, it was accepted at trial that the defendant was only an inch and a half taller than the undercover woman police officer. The magistrate found that difference to be nothing out of the ordinary and he was quite right to do so. The woman police officer was speaking of estimates, there certainly was no evidence that she was equipped with a tape measure while she was at the night club.

12. It was also quite logical for the magistrate to find that he was unsure whether the undercover woman police officer had correctly identified the person who first approached her asking if she wanted to buy dangerous drugs as the same person as that who returned later and gave her the dangerous drugs. There was no evidence before the court that the person making the original offer was the same person as the one who made the delivery minutes later. It appears that the witness was never asked about this. What the magistrate found to be crucial was the fact that the undercover woman police officer had identified the defendant as the trafficker but not necessarily as the offeror. She said that she had kept the trafficker - the supplier of the drugs - in clear sight until such time as he was identified to the licence check party. The magistrate, quite properly, found that he could not be sure that the defendant was the only person trafficking in drugs in the night club that night. There was no evidence before him of other dealings and his finding on this issue is of no assistance either to the appellant or to the respondent.

13. The magistrate was aware that the appellant claimed to have come from a wedding party. He was also aware that he produced his invitation to the banquet as proof of his claim. However, the magistrate did not believe him. There's no reason why he should not have done so. As I have said he is the trier of fact. The fact, if it be true that the appellant had come from a wedding banquet, in itself is indicative of nothing. It does not mean that he did not, or could not, have had dangerous drugs on him.

14. Criticism was made of the magistrate's approach to demeanour, both of the prosecution witnesses and of the defendant. Demeanour is a valid criterion for a court to take into account when evaluating evidence. I am obliged to Mr Madigan, counsel for the respondent, for drawing my attention to the case of Powell v Stretton Manor Nursing Home (1935) AC 243 in which Lord Wright said, at page 247:

"The judge will form his impression from the whole personality of the witness. He can allow for the nervous witness standing up in a crowded court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence, for no man is infallible. But in the main, a careful and conscientious judge with his experience of court, is as likely to be correct in his impressions as any tribunal."

15. I am aware of the case dealing with demeanour that Mr Polson referred me to this morning, R v Ng Wing Min (1994) 2 HKC 464, in which strong criticism was made of the trial judge's reliance upon demeanour. However, in no way in the case before me did the magistrate use language as colourful, or indeed as emotional, as that used by the judge in Ng Wing Min and I found that case to be of no help in this matter.

16. Mr Polson suggested that there is a 'lurking doubt' in this case. The Court of Appeal addressed the question of 'lurking doubt' as recently as 30 October 2000, in HKSAR v Hung Wai Tak (2000) 4 HKC 641. In speaking of 'lurking doubt', the court said, at page 649:

"The basis on which this court may interfere is extremely narrow and the hurdle is a very high one. It has long been recognised for obvious and sound reasons that an appellate court which has not had the advantage of seeing and hearing the witnesses should be slow to interfere with the verdict returned by a tribunal which has had that advantage."

17. There were no errors of law on the part of the magistrate in his statement of findings and I do not find his conclusions to be in any way insupportable.

18. I am satisfied that the conviction is neither unsafe nor unsatisfactory. The appellant's appeal against conviction is dismissed.