THE QUEEN v. LEE TAT CHOI

Mag. App.
No. 304 of 1988

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H E A D H O T E

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Independent witness called by defence - failure by magistrate to evaluate conflict of evidence - appeal allowed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 304 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Eaton at North Kowloon Magistracy of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134., He was also convicted of resisting arrest, contrary to section 63 of the Police Force Ordinance, Cap. 232, but against this latter conviction he does not appeal.

2. The evidence of the two arresting officers, PC1290 and PC10463 was essentially the same. They were on patrol near Block 12, Li Cheng UK Estate, at 1.30 p.m. on 15th September, 1987, when they saw the appellant approach. When he was about eight feet away, he turned and entered the staircase. The officers were suspicious and ran after him, shouting at him to stop. They caught him at 1/F level and revealed their identity. They searched him, and in a Marlboro cigarette packet he was holding in his hand, they found four transparent plastic bags of white powder. These were subsequently found to contain 8.27 grammes of heroin. No traces of heroin were found in the packet itself.

3. The appellant was arrested and cautioned. He asked for a chance. PC1230 handed the packet containing the suspected dangerous drugs to his colleague and put his hand on the appellant's shoulder, intending to take him downstairs. The appellant pushed him away and ran down the stairs, shouting "Police is framing up people" The officers chased after him and caught him on the landing between 1/F and G/F. After a brief struggle, he was overpowered and handcuffed.

4. It was put to the officers, and denied, that the cigarette packet was placed on the floor at some stage and also that it coatained two cigarettes.

5. The appellant gave evidence. He said he was returning to Bloch l2 where he lived with his family, when two men shouted at him to stop. They said they were police officers and asked for his identity card.

6. The appellant said the second officer was not PC10403, but PC19540, who later cautioned him in the police station in respect of the resisting arrest charge. Over a year earlier he fiat had an altercation with this man in Block 12 concerning a mutual girl friend and the officer had threatened revenge.

7. The appellant said that PC1290 looked in the cigarette packet, in which there were two cigarettes. He also examined a handbag allet and newspaper which were in the possession of the appellant. He then put all these things on the floor.

8. An argument ensued, after which PC1290 walked downstairs. The appellent picked up a cigarette to smoke, but PC1290 returned and told him not to touch the things on the floor. The officer squatted down and opened the cigarette packet, which he threw back onto the floor.

9. When the office produced his handcuffs, the appellant stepped back, but PC1290 put his arms around him whereupon the appellant several times shouted "Police hit me". he was sublued and taken downstairs to wait for a police vehicle. It was only at the police station, when he refused to sign a post-record of the arrest, that he realised why he hat been arrested.

10. The defence called a witness, Madam Wong - also a resident of Block 12 - and it is her evidence that has grounded this appeal, she was an elderly lady, who was on nodding acquaintance with the appellant's family, who were also Chiu Chow. She said she did not know the appellant, but she recognised his face. She referred to him as that brat. She had been asked to testify by the appellant or his mother.

11. On the day in question Madam Wong had been sitting on the staircase, when 'this brat come up along the stairway. She lived on 2/F, but she did not say whether it was on 1/F or 2/F that she was sitting.

12. The appellant was followed by two men. They were only a few feet from where Madam Wong was sitting. She saw the appellant hand a packet of cigarettes to one of the two men, who tipped two cigarettes out of the packet and threw the empty packet on the floor. She also saw the appellant drop his newspaper on the floor. One of the two men left the scene and was away for about half an hour. When he returned, he took away the appellant.

13. In cross-exmamination Madam Wong admitted she did not hear any conversation between the men, but she knew she had been seen by the appellant. When they all left, the newspaper and the cigarette packet remained on the landing. Later she noticed they had disappeared, but did not see who took them. It was then 2-3 p.m

14. Defence counsel made the point in his speech that, if the prosecution evidence about the chase were true, the appellant had a five yards start and had an opportunity to throw away the packet as he went round the corner of the staircase. He also pointed out that the tone of Madam Wong's evidence was credible and should cast a reasonable doubt on the prosecution evidence.

15. In some five pages of his Statement of Findings the magistrate accurately outlines the facts. He continues :-

"I found PW1, PW2, PW3 and PW4 to be honest and convincing witnesses. Although there were some discrepancies in their evidence these were of minor nature.

I did not find the Appellant or DW2 to be honest and convincing witnesses.

After considering the arguments and the evidence I was satisfied beyond all reasonable doubt that the facts were as set out in paragraph 6 hereof.'' (para. 6 sets out the prosecution evidence.)

16. Mr Alderdice, for the appellant, complains that the magistrate has failed to evaluate the evidence and submits that, where there is a genuine conflict of evidence of this nature, it is not enough for a magistrate simply to state that he believes the prosecution witnesses and disbelieves the defence witnesses; the appellant is entitled to know why he was disbelieved. In suppert Mr Alderdice has cited several Hong Kong authorities.

17. In Lam Tin-chung v.R.⁽¹⁾ the Full Court, in an appeal from a District Judge, held that a tribunal must evaluate the evidence before it and in the case of oral testimony, must weigh it in the context of other salient circumstances. It should also be made apparent that such an evaluations has in fact been made.

18. Lam Kam Ming and anonher v. R.⁽²⁾ was also an appeal from the District Court. After citing Lam Tn-chung and other authorities, O' Connor J., giving the judgment of the Court of Appeal paid at p. 4:-

"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 maters 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. She 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.

In the present case we consider that the reasons given are too sparse and are in part unsatisfactory

19. More recently, Addison J. In R. v Chan Tai Wai⁽³⁾ said at p 4:-

"The appellate Count as well as the appellant needs to know why he was convicted and what facts were found proved. It is not for an appellate Court to divine on what evidence the accused was or may have been convicted but to determine whether the precise reasons given by the magistrate for finding the defendant guilty are sustainable"

20. Finally, in R. v. Chong Kam-sau⁽⁴⁾ O'Connor J. restated the above principles in a case in which one of the defence witnesses was a 12-year old boy, who apparently was a completely independent witness. The appeal was allowed on the grounds that the findings were inadequate.

21. Miss Chan, for the Crown, takes no issue with these authorities. She submits, however, that the magistrate's reasons for rejecting Madam Wong's evidence become apparent when her evidence is looked at as a whole.

22. In particular, she says, the witness would have heard the appellant's shouts if she was so close to the action. She also points out that Madam Yong's evidence in conflict with that of the appellant as to whether the exhibits were left behind.

23. To which Mr Alderdice replies that it is not for this court to speculate how the magistrate approached the evidence and that, in any event, there is some doubt as to the appellant's position on the staircase when the shouting occurred.

24. Madam Wong's evidence was unsatisfactory in several respects and I agree with Miss Chan that she should have heard the shouting, if indeed there was any shouting. But the important thing is that, on the face of it, she was an independent witness and she saw the cigarettes. There is thus a real and crucial conflict between her evidence and that of the officers. That, in my judgment, in a matter that should have been evaluated by the magistrate, as indicated by the authorities cited. It is very different from the usual case, in which the conflicting evidence is provided by the arresting officers and the defendant. In that situation there is not much more that a magistrate can say other than that he believes the police and disbelieves the defendant.

25. For these reasons, the appeal is allowed and the conviction quashed.

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

(2) C.A. No. 607/79

(3) Mag. App. 662/85

(4) Mag. App. 859/85