HKSAR v. FU MAN KIT

CACC175/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.175 OF 2000

(ON APPEAL FROM DISTRICT COURT CASE NO.65 OF 2000)

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J U D G M E N T

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Stock J (delivering the judgment of the Court) :

1. This is an application for leave to appeal against conviction. The applicant appeared in the District Court as the 2nd defendant together with another, Shek Wai-hung. There were, in all, seven charges. The 1st defendant, Shek, was charged with all seven offences; but this applicant was charged with only one of them, namely, the third charge, which alleged that he and the 1st defendant, on 3 September 1999 at Hardy's Bar in Wyndham Street, Central, unlawfully trafficked in a dangerous drug, namely, 6.4 grammes of a crystalline solid containing 6.26 grammes of methamphetamine hydrochloride (commonly known as "Ice"). The applicant pleaded not guilty. The 1st defendant pleaded guilty to that charge as well as to the other six. There was lodged with this court by the 1st defendant an application for leave to appeal against the sentence, and that application has been abandoned and consequently dismissed.

2. This applicant was convicted and sentenced to a term of three years' imprisonment. He seeks leave to appeal in relation to the conviction only.

3. The background of this case is, for the purpose of this appeal, not in dispute. In late August 1999, the 1st defendant had asked an undercover police officer, who is Constable 49093, whether he was interested in drugs, saying that he had a variety for sale. They exchanged telephone numbers, and in due course they arranged to meet on the night of 2 September 1999 in D'Aguilar Street in Central. There, the officer introduced the 1st defendant to another officer, Police Constable Tang, 48922 the first prosecution witness.

4. The first prosecution witness said that he entered the bar at 9:40 p.m. with over $30,000 in marked money for the purpose of the operation. He then saw Police Constable 49093 enter the bar with the 1st defendant. The 1st defendant handed to this officer, Police Constable Tang, a transparent plastic bag which had in it some white substance, and Police Constable Tang gave the 1st defendant $2,500. The 1st defendant asked him if he wanted more drugs, and he said that he did. Then the 1st defendant was seen to make a 'phone call. Shortly after midnight, that is, on 3 September, he left the bar, returned a little while later, and handed to the officer a number of packets of white substance wrapped in tissue. The 1st defendant was then given a further sum, this time, $5,600. The 1st defendant said that there was more "ice" available which would be delivered in a while. Shortly before 1 a.m., the 1st defendant left the bar.

5. The story is then picked up by the second prosecution witness who was Sergeant Lai Wai Man. He was maintaining surveillance in Wyndham Street opposite the bar. He saw the 1st defendant emerge from the bar shortly before 1 a.m., and he saw the 1st defendant approach this applicant and a young female, who, it is conceded, was this applicant's girlfriend, and he saw the 1st defendant talk to them. The 1st defendant took money from his pocket, and handed the money to the applicant, and he saw the applicant pocket the cash. Then he saw the female hand to the 1st defendant something wrapped in white tissue paper, and the 1st defendant placed that packet in a trouser pocket. The 1st defendant talked to the applicant, and the three walked down Wyndham Street and entered the bar whence the 1st defendant had recently emerged.

6. According to the evidence of Police Constable Tang, at 12:59 a.m., the 1st defendant returned to the bar, this time with the applicant and the young lady, and he introduced them to the officer. He introduced the female as the applicant's girlfriend. Then the 1st defendant gave the officer a packet. The officer looked at the packet, and accepted in cross-examination that the look which he gave must have been a very quick one. It was a transparent bag wrapped in white tissue. Inside this bag was the quantity of drugs which formed the basis of the third charge which is the subject of this appeal. He took the packet from his right trouser pocket, which was the pocket into which he had placed the packet given to him by the girl a few minutes earlier outside the bar in Wyndham Street.

7. The evidence was that the 1st defendant then said that it was "Ah Kit", namely the applicant, "who took the things here". He says that when he said that, the applicant was present, sitting to the left of the 1st defendant. In other words, the 1st defendant was sitting in between the officer and the applicant. Then, the officer said to the applicant :-

"Sorry, you have to run around like this at this time of night."

and the applicant replied :-

"It doesn't matter. I just have dessert with my girl in Yuen Long. I've known Shek Wai-hung for 10-odd years and I've got a car so it doesn't matter."

There was a discussion about the danger of receiving a parking ticket in the area, and the applicant said that his car was parked at a meter, and that there was no problem.

8. As for noise in the bar, the officer said in evidence that whatever noise there was, he, the officer, had no difficulty in hearing what was said.

9. A few minutes later, the 1st defendant left the bar again, saying that he was going to collect more drugs for the officer. The applicant and his girlfriend remained at the scene talking to the officer and his colleague. The 1st defendant returned and handed over some drugs. Then the police moved in and arrested the 1st defendant, the applicant and his girlfriend. A search of these persons was conducted, and nothing incriminating was found upon this applicant.

10. It emerged also in evidence that after they were arrested, the police looked for the vehicle to which reference had been made in conversation, and could not locate it. There is no suggestion that any admissions were subsequently made by the applicant or that any marked money was found upon him. The applicant did not give evidence at his trial nor was any evidence produced on his behalf.

11. In this appeal, it is argued on the applicant's behalf that the trial judge drew as the only reasonable inference to draw from the primary facts, a conclusion that this applicant was party to a joint enterprise to traffick in dangerous drugs, which inference, it is said, was not the only reasonable inference to draw; and it is suggested that the learned judge erred in finding that such conversation as was held between the applicant and the police witness in the bar could only be referable to drugs.

12. The trial judge accepted the evidence of the prosecution witnesses. He was satisfied that in the presence of the applicant, the applicant's girlfriend handed the 1st defendant a packet which was then handed to the officer once the trio were back in the discotheque. He accepted the evidence about the conversation between the applicant and the police officer in the bar, and the evidence that immediately after the introduction of this applicant and his girlfriend to the police officer, drugs were handed over. The trial judge concluded that, in context, the conversation which took place between this applicant and that officer could only have been one referring to the drugs that had recently been exchanged.

13. The trial judge recognized that there was nothing adverse to be drawn from the fact that the applicant did not give evidence, but he added that where a case was such as to admit of explanation or contradiction that :-

"... if the conclusion to which the prima facie case tends to be true, can human reason do otherwise than adopt the conclusion to which the proof tends?"

citing R v. Burdett (1820) B & Ald 95 at 120. The trial judge stated that :-

"... if one looks at the evidence overall, especially the nature and proximity of events and a conversation between PW1 and the Second Accused, in my judgment the only inference which can be drawn without flying in the face of the common sense which juries are so often urged to apply is that this was a joint venture in which, at least, the First Accused and the Second Accused were involved to supply ice to PW1."

14. Mr Stirling, on the applicant's behalf, urges upon this court, in his very able submissions, a number of contentions : that the applicant never had any drugs in his actual possession; that the evidence is far from conclusive that the applicant saw the tissue packet being handed to the officer in the bar; that it cannot be concluded that the applicant heard what the 1st defendant said to the officer once they returned to the bar; that the fact that money had been handed over to the applicant by the 1st defendant is a fact capable of bearing a host of different explanations including innocent ones; that in the reported conversation in the bar, when the applicant was present, drugs were never mentioned. Further, given that the applicant's vehicle was never found, it is suggested, though the matter is not now strongly pressed, that the reliability of the officer's evidence about what was and what was not said is in doubt. Accordingly, it is said that the inferences drawn by the trial judge were not only not the only reasonable inferences to be drawn, but were not inferences which were in themselves proper to draw.

15. In our judgment, the answer to these criticisms is the answer provided by the judge in his reasoning, namely, that each item of evidence taken in isolation is of itself of no conclusive weight, but that the events taken together, when viewed realistically, allow of but one sensible conclusion, and that is that this applicant must have been party to the supply of drugs which were the subject of the third charge.

16. In so far as it was positively averred in the skeleton submissions that the applicant did not in fact see the drugs handed by the girl to the 1st defendant, that is not a contention open to the applicant, since he gave no evidence to that effect.

17. The judge was perfectly entitled to conclude that the applicant must have seen what transpired in the street, as did the observing sergeant. We agree that the facts, in the absence of any alternative explanation, speak for themselves. The 1st defendant had made a 'phone call for drugs, immediately after which he went out of the bar and purchased drugs or received drugs in the presence of the applicant having handed money first to the applicant. Within a matter of minutes, those very drugs were delivered to the purchaser by the 1st defendant, again in the presence of the applicant. There was then a conversation in which the words used by the applicant could only really make contextual sense if the subject matter was the business then taking place, which was the supply of drugs by the 1st defendant to the policeman.

18. As for the matter of the motor vehicle, the trial judge did not in fact ignore the evidence that the applicant's car was not located later. He referred to it in his Reasons for Verdict. He took the view, quite reasonably, that the reason for the failure of the police to locate the vehicle was not one about which he could speculate. One notes that the applicant was silent when arrested, and it may be, one knows not, that he simply did not tell the police where the vehicle might be found.

19. There is one matter that has somewhat exercised our minds. It is said that the conversation between the 1st defendant and the police officer in the bar when the 1st defendant said that it was the applicant who had brought the things, being out of the hearing, so it is said, of the applicant, was inadmissible hearsay. That of course is to suppose, for the purpose of the submission, that the applicant did not hear what was said. It is not entirely clear what the judge found in this regard. On one view, it is implicit, or may be said to be implicit, in the Reasons for Verdict, that the judge found that the applicant must have heard what was said, for he refers to the fact that there was no direct evidence that he heard it, yet the place was not noisy and no one appeared to have difficulty in hearing the police officer, nor did the police officer have difficulty in hearing others - which must include the conversation with the applicant. If this is what the judge found, then the evidence of the statement made by the 1st defendant to the police officer was admissible evidence : it becomes evidence as against the applicant of the truth of what the 1st defendant said if by the applicant's conduct or silence or response, he accepts the accuracy of what was said. But in any event, if that implication is not to be drawn, namely, the implication that the judge found that the comment was heard, it nonetheless remains evident from the Reasons for Verdict that the judge was alert to the significance of the applicant not hearing that comment, for he expressly referred to the question whether or not it was heard, and we note that he then referred to such evidence overall which brought him to his conclusion of guilt, and in doing so, he referred only to the conversation between PW1 and the applicant, and not to the conversation between the officer and the 1st defendant. In such circumstances, one may safely assume that if the judge thought that the conversation between the 1st defendant and the officer may not have been heard, the judge has put it aside and relied on the rest of the evidence, which was ample in itself to show that the applicant was a party to the unlawful trafficking of drugs that took place that evening, and which was the subject of the third charge.

20. In these circumstances, we are of the view that the judge's conclusion cannot properly be impeached on appeal. It is said that this court should have a lurking doubt about the safety of the conviction. Yet we entertain no such doubt and, accordingly, this application for leave to appeal against conviction is dismissed.