LAM KAM MING AND ANOTHER v. THE QUEEN

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JUDGMENT

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O'Connor, J.:

1. The appellants were convicted on a joint charge for the possession of dangerous drugs for trafficking, and the 1st appellant was also convicted on a second charge of a similar offence.

2. The facts as alleged by the prosecution were that acting on information police officers laid an ambush on 18th January 1979 at Fuk Loi Estate, Tsuen Wan. They there stopped the 1st appellant and on searching him found on his person a small red envelope containing what was later established to be a dangerous drug. They also found a bunch of 3 keys on his person. The party eventually went to the room that 1st appellant shared with his wife the 2nd appellant. The police used the keys found on 1st appellant to open the main door of the flat and the door of the appellants' room. They found the principal tenant and his wife in the flat and the 2nd appellant in the room. The police searched the room and underneath the bunk bed found a Kodak camera box containing 16 packets of what were later established to be dangerous drugs. Under the mattress on the bunk they found $3,450 in notes.

3. The 1st appellant gave evidence of rather different facts. He said that on 18th January 1979 he was at a cafe in Tsuen Wan when an acquaintance, Tsang Man, came and sat beside him saying that he had something to tell him. Then Tsang Man said that he was in the dangerous drugs business and asked the 1st appellant if he knew any addicts or traffickers. The 1st appellant knew a Sgt. Kwok Yin To (PW6) who had asked for his help in getting drug cases so he got in touch with Sgt. Kwok and arranged to meet him at another cafe in Tsuen Wan. At that meeting there were other officers present who have given evidence for the prosecution, and according to the 1st appellant the officers asked him to arrange to get one pound of dangerous drugs from Tsang Man. He says that he got in touch with Tsang Man who said he would supply 17 packets, each of slightly less than half an ounce, amounting in all to half a pound, and that it was arranged that 1st appellant and Tsang Man should meet in Fuk Loi Estate. The 1st appellant went with the officers to lay an ambush at the arranged meeting place some half hour before the agreed time for the meeting. Before they had got into ambush positions Tsang Man appeared holding a green plastic bag, saw them, took fright, dropped the bag and ran. He was pursued but escaped. The police opened the plastic bag which contained a Kodak camera box, inside which were the packets. The police asked 1st appellant to sell the drugs so that they could get the case. The police said they suspected Tsang Man might live with 1st appellant so they insisted on going to his room. According to him, he, not the police, opened the outer door of the flat and his wife came out through the door of his room, which also was not opened by the police. The police searched his room in a cursory fashion but never searched the bunk or under the bunk. He says in a drawer the police found $3,450 which was his savings. According to him a police officer left the room and then returned with the Kodak camera box and said he suspected it and its contents belonged to the 1st appellant. In brief, the defence put forward was that the prosecution case was a frame up.

4. The 2nd appellant did not give evidence.

5. The joint charge related to the drugs in the Kodak camera box and the 1st appellant was charged separately with possession of the drugs in the red envelope.

6. The appellants were separately represented at the trial.

7. The grounds of appeal are that the learned trial judge failed to comply with the provisions of section 80 of the District Court Ordinance in that he did not sufficiently evaluate the evidence and record his reasons for arriving at his verdict, and that, insofar as he did evaluate the evidence and record his reasons, he made errors of fact and drew unsustainable inferences. The learned trial judge in his judgment recited adequately the main elements of the prosecution and defence evidence. Having done so he went on to say that the prosecution witnesses were searchingly cross-examined at considerable length but were not shaken in any way and that he was satisfied that they were truthful and reliable witnesses. His comments on the evidence were as follows:-

"According to 1st (appellant's) evidence the police acted in a way which exposed him to a serious risk at least of being seen and recognised by Tsang Man. The Court does not believe that if 1st (appellant) really were an informer the prosecution witnesses would have exposed him to such risk. An informer whose identity has become known can be of little further use. The Court rejects the evidence of the 1st (appellant) whenever it conflicts with the evidence of the prosecution witnesses"

and later on he says:-

"Furthermore the Court does not believe that the police party went to the (appellant's) place of residence and entered it and never bothered to search it. That makes no sense whatever. They had nothing at all to lose by making a search. The Court accepts the evidence for the Crown and rejects the evidence for the defence whenever it differs from the evidence for the Crown."

He then went on to set out the conclusions he drew from proven facts.

8. As regards the first comment set out above Mr. Huggins for the appellants, rightly says that the learned judge does not appear to have had in mind the fact that on the defence evidence the risk was slight, as the ambush was being set up a half hour before Tsang Man was due to arrive, and it was only the unforeseen early arrival of Tsang Man that enabled Tsang Man to see the 1st appellant. Furthermore it is said that the police might, on the defence evidence, have thought that there was no point in concealing the 1st appellant, because, if Tsang Man were caught, he would be well aware of the fact that he must have been 'set up' by the 1st appellant. As regards the second comment set out above the criticism is made that the defence case was not that there was no search of the appellant's room but that the search was merely a cursory one and did not include any search of the bunk or underneath the bunk. It is true that the learned judge in that passage appears to have misunderstood the defence case, but on an accurate understanding of it, his comment remains cogent. If the prosecution case was a frame up, and this has to be viewed against the finding of the $3,450 in appellants' room, it would seem very unlikely that they would not thereafter carry out a thorough search which would include the bunk and the space under it.

9. We have been referred to the following cases wherein observations were made as to the duties of judges and magistrates in giving reasons for their verdicts: R. v. Lam Ting Chung⁽¹⁾; Kowloon Motor Bus Co. Ltd. v. Kong Tung⁽²⁾; R. v. Law Keung⁽³⁾; R. v. Tang Nai Keung⁽⁴⁾; R. v. Cheung Man Wah⁽⁵⁾; R. v. Wong Ching Kui⁽⁶⁾; R. v. Cheng Kam Man⁽⁷⁾; R. v. Yeung Chiu⁽⁸⁾; R. v. Li Chi Kin⁽⁹⁾. The principles are sufficiently set out in those authorities and in the case of R. v. Ma Wai Shuen & anothers⁽¹⁰⁾ which we have come across while preparing this judgment. We do not wish to unnecessarily add to the authorities that may be quoted in future. We agree with the observations in those cases. The reasons given should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the case. The judge or magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty.

10. In the present case we consider that the reasons given are too sparse and are in part unsatisfactory. We indicated to counsel for the appellants that we were considering applying the proviso. Counsel referred us to a number of cases concerning its application and pointed out that a court should be slow to apply the proviso where it would involve making an evaluation of the evidence without having had the advantage of seeing and hearing the witnesses. We accept that, but have regard to the fact that the learned trial judge did not, apparently, obtain any assistance from the demeahour of the witnesses in this case. Counsel also said that he could find no case where the proviso had been applied in circumstances where the trial judge's findings of fact were unsatisfactory and inadequate. In R. v. Albert Wu⁽¹¹⁾ it was held that the powers of an appeal judge under section 119(d) of the Magistrates Ordinance to make such order 'as he thinks just' bears a close resemblance to the proviso. In R. v. Albert Wu⁽¹¹⁾ the court dismissed the appeal on the ground that if the magistrate had approached his task of judgment in a proper manner, a conviction would without doubt have followed. See also R. v. Currim Rahim⁽¹²⁾.

11. We dismissed the appeal and gave short reasons, indicating that we would give detailed reasons in writing. We have since come across the judgments in R. v. Ma Wai Shuen & anothers⁽¹⁰⁾. In that case five defendants were tried for conspiracy and the trial record ran to almost two hundred pages. The findings were:-

"unhelpful and gave no indication whatever of the nature of the case for the prosecution or of the defence; they were little more than that the learned judge believed the prosecution witnesses, disbelieved the appellants and thought the only evidence he could draw from all the evidence before him was that the appellants were guilty. That is a formula which could be applied to almost any criminal case where a defendant is convicted, and does not here constitute a sufficient "short statement of the reasons for the verdict" within the meaning of section 80 of the District Court Ordinance."

Nevertheless the appeal court after a review of the evidence was convinced that the prosecution case was overwhelming and the appeals were dismissed. Though the proviso was not mentioned it appears to us that it was applied in dismissing the appeals.

12. It is not suggested to us that there are any material discrepancies in the prosecution evidence but we are asked to keep in mind that police officers do at times frame people and give false evidence. We are well aware of that and of course it is part of the background knowledge which any trier of fact would have in mind. Counsel for the appellants pointed out various matters in the evidence for the defence and submitted they were indicative of the reliability of the defence evidence. We did not find such matters, either separately or cumulatively as being matters of weight assisting the appellants. We consider that the evidence of the prosecution witnesses ties in with each other without the type of inconsistencies one might expect to appear under intensive cross-examination if they were telling a concocted story. Parts of the cross examinations were directed at matters which one would not have expected to have been foreseen by the officers if they had been agreeing false stories. On the other hand the prosecution evidence does contain the sort of inconsistencies that one expects from truthful witnesses. To a degree the cross examinations of the prosecution witnesses brought out convincing circumstantial corroborative detail on, for example, such matters as where the witnesses were precisely when in the ambush position, the detailed circumstances of the apprehension of the 1st appellent, whether the Inspector left the appellants' room during the search and at what stage and for how long.

13. The defence case was that the police did not search the bunk or look underneath it. The cross-examination of the officer who said he found the Kodak camera box containing the drugs under the bed was recorded in question and answer form. It is most convincing and displays a knowledge of the layout under the bunk and what drawers and articles there were that clearly comes from personal observation. The questions put were in such a form that, taken together with the answers, it is clear that his description is largely in accord with the instructions given to the defence solicitor, or at least so much in accord as could only be so if the officer had himself looked under the bunk and moved articles there.

14. A minor point is that if people are concocting a story one would expect them to concoct it as strongly as they might think they would get away with. In this case the police officers say that there was no reply to the cautions.

15. The defence evidence was that of the 1st appellant alone so it could not be contrasted with other defence evidence, as could the evidence of the various prosecution witnesses, in order to see if there were any inconsistencies that might be of such a nature as to support or undermine the defence case. It had to be considered on its own, where it conflicted with that of the prosecution.

16. Of course we are in no way implying that witnesses ought to be counted rather than evidence being weighed.

17. The defence case as put by cross-examination was that the police brought the drugs to the flat, but found the Kodak camera box in the kitchen and thereafter put the drugs in the box. In evidence the 1st appellant said that the police brought the Kodak camera box and the drugs to the flat. Furthermore his evidence is that they were brought openly into the flat. It is common case that the principal tenant and his wife were then in the flat and indeed the principal tenant was a prosecution witness. If the defence case were true, then the police were taking the risk of him having noticed the police bring the box to the flat and of his saying so.

18. In examination in chief the 1st appellant said that on the day in question Tsang Man came and sat at his table in the cafe and told him that he was in the dangerous drugs business and asked if 1st appellant knew any addicts or traffickers. In cross examination he said that he got the information about Tsang Man from someone else and again, later on in cross-examination he said that it was he who raised the subject of drugs with Tsang Man, later still he backed away from that position. It was put to the prosecution witnesses in cross-examination that the 1st appellant told them that Tsang Man said he would give the 1st appellant 16 packets each containing a half ounce of drugs. However, in evidence the 1st appellant said that Tsang Man had told him that he would give him 17 packets each containing slightly less than half an ounce. This evidence appears to be an afterthought by the 1st appellant. We consider it significant.

19. We are each of the firm opinion that on a proper consideration and evaluation of the evidence a judge properly applying himself to his task could not have failed to convict. The learned trial judge came to the correct decision though he did not sufficiently, or with sufficient accuracy formulate reasons. There was no chance fairly open to the appellants of being acquitted on the evidence and the errors of the learned judge have not deprived the appellants of any such chance. Accordingly we dismissed the appeals.

Silke, J.:

20. I have had the benefit of reading, in draft, the judgment of my Lord President with which I am in complete agreement.

21. There is however one aspect of this appeal which troubles me and, while reference was made to it in the course of the hearing, I think a further mention is desirable.

22. That is the non-production in this court of certain items which were exhibits in the court below. I refer specifically to the Kodak Camera box and its contents and the laisee packets and its contents.

23. They were, we were told, destroyed under the provisions of Sections 55 and 56 of the Dangerous Drugs Ordinance to which Mr. Wong for the Crown has referred us.

24. While dangerous drugs shall, on seizure, be forfeited to the Crown and while a court may order anything used in the commission of an offence to be forfeited to the Crown, exhibits, once produced in court, must be held until an appeal has been decided.

25. Rule 8 of the Criminal Appeal Rules is quite specific in its terms: "Except in so far as the trial judge shall direct, all exhibits for the case shall remain in the custody of the Registrar, or of such person as the Registrar directs, pending any appeal or the final determination of an appeal".

26. In this instant case the learned trial judge gave no direction and there was no authority of any kind for the destruction of the exhibits and which destruction was quite improper.

27. It is to be hoped that in future exhibits, including drugs, will be held in conformity with the Rules and be capable of production should the court so desire.

(1) 1970 H.K.L.R. 105

(2) 1973 H.K.L.R. 198

(3) Cr. App. 625 of 1972

(4) 1976 H.K.L.R. 736

(5) 1976 H.K.L.R. 415

(6) Cr. App. 1103 of 1978

(7) Cr. App. 426 of 1969

(8) Cr. App. 1043 of 1975

(9) Cr. App. 378 of 1972

(10) Cr. App. 949 of 1978

(11) 1961 H.K.L.R. 467

(12) 1959 H.K.L.R. 117