THE QUEEN v. CHAN KIM WING

BETWEEN

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J U D G M E N T

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Silke, V.P.:

1. The Applicant, Chan Kim Wing, appeared for trial as D1 in a joint count with one Chow Siu Hung (D2) of trafficking in dangerous drugs contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. He was convicted after trial by His Honour Judge Longley of that offence.

2. The evidence was that on 23rd January 1988, a police party was keeping observation at the Tak Yuen Restaurant in Man Ying Street, Kowloon. The first prosecution witness, PC16311, was inside the restaurant. The second prosecution witness, PC23535, was outside. PW1 had gone there at about half past five in the afternoon and was keeping observation pretending to read a newspaper.

3. At about 6:40 p.m., he saw a person whom he identified as the the 2nd Defendant, Chow, coming into the restaurant with other people. At about 6:50 p.m., the Applicant entered, went up to the table and spoke to D2. This conversation as between Dl and D2 was also observed by PW2 who was still outside the restaurant. The Applicant then left the restaurant. At about three minutes past seven, he returned. He went straight to the toilet. He was followed there by D2. PW1 followed by PW2, who had by now entered the restaurant himself, also went to the toilet. On entry they saw Dl and D2 facing each other. Chow had his hand in the pocket of his windcheater and in his other hand was a wallet. The two police constables revealed their identity. The hand of D2 was pulled out of the pocket and he was found to be holding four packets, suspected at that time and which were in reality, dangerous drugs.

4. At that point, it was the police evidence that D2 was arrested and cautioned and said, and I quote from the Reasons for Verdict of the trial judge:

". . . words to the effect that he had been caught red handed and could not say anything, that the police knew he was not a pusher and that he had bought or was buying the drugs from Lo Kwai or Ah Kwai. As he said these last words, he pointed at D1."

5. D1 was then cautioned by PW1 and said: "I am caught red handed, I have nothing to say."

6. To complete the picture, when the Applicant was searched, a sum of $4,844 was found upon him. The two were taken to the Yaumati Police Station where D2 made a statement. In the course of the trial the evidence of Dl and D2 differed from and conflicted with the evidence of the police.

7. Mr. Buchanan who appears for the Applicant in this Court, submits first: that there was insufficient evidence to prove the offence of trafficking. He has referred us to the definition of that word in section 2 of the Dangerous Drugs Ordinance, Cap. 134. That definition reads:

"'Trafficking in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly^.."

8. Mr. Buchanan submits that the expression "I am caught red handed, I have nothing to say"cannot possibly be considered to be an admission and without it there is no evidence at all in relation to trafficking by the Applicant. With respect, we do not agree.

9. The judge carefully considered the generality of the evidence of that which had happened before hand and that which took place immediately upon the arrest of both D1 and D2 and said at page 7 of the Reasons for Verdict:

"I accept that the police asked D2 (who must have been standing very close to D1) what he had in his pocket and that they suggested it was Dangerous Drugs. I accept that D2 was arrested and cautioned and, whether or not he pointed at D1, said he had been caught red handed and was not a pusher and had bought them from Lo Kwai. It must have been abundantly appeared (sic) to D1 even before he was himself arrested that the police were investigating drugs. Indeed D1 even admitted in his own evidence that something was said to him about drugs by the police before he was cautioned and he uttered the words in question."

10. Given that the evidence of the police officers was capable of belief, then their evidence was sufficient to show at the very least a dealing in drugs which is part of the definition of the word "trafficking". It was a matter for the trial Judge to assess the evidence and the witnesses who gave it. He came to the clear conclusion that he accepted the evidence of the prosecution and not that of the then defendants.

11. Mr. Buchanan'S second point is, that in coming to his conclusions, the trial Judge took into consideration matters which he should not. This arises again from the evidence of the prosecution's witness. PW1 said that he had been keeping observation upon the table in the restaurant at which D2 was seated because those others at that table gave the appearance of being "drug addicts". Second both PW1 and PW2 said that, when they entered the toilet, D1 and D2 had "weird" expressions, on their faces. This evidence was, of course purely opinion evidence and was not evidence which could be taken into consideration in any way as being indicative of or Pointing to guilt.

12. In a passage complained of at the bottom of page 7 of the Reasons for Verdict, the trial judge does give the appearance of including those two matters as part of the circumstantial evidence in the trial. We are of the view that, while this passage is somewhat unfortunately expressed, it does not, considering the method of evaluation of the rest of the evidence and the findings to which the trial judge has come and to which we have referred above, give us cause for disquiet.

13. It was also suggested by Mr. Buchanan that a trial judge is under a duty to consider all possible defences which might arise in relation to a defendant - as I understand his point. He cites to us Kachikwu [1968] 52 Criminal Appeal Reports p.538; in support of this proposition. That case in its headnote makes reference to the duty of the judge to took for any possible defence to the charge arising from the evidence and to refer to such defence in the summing up even though the defence has not been relied upon by defending counsel.

14. A district Judge who would not be "summing up" to himself must necessarily be under the same general duty, but that duty relates, and the body of the Report supports it, to matters arising from the evidence and not to matters of speculation. There is no duty upon a trial judge to raise imaginary defences of which there is no suggestion at all made to him in the course of the trial.

15. There was evidence upon which the trial judge could properly come to the conclusions he did given that he has been seen to evaluate that evidence properly. We think he has been so seen. In those circumstances, the application for leave to appeal against conviction is refused.