HKSAR v. WONG WAI CHUNG

HCMA545/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 545 OF 2002

(On appeal from TWCC557 of 2002)

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J U D G M E N T

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1. The appellant was convicted on 2 May 2002 of one charge of trafficking in a dangerous drug. He was on 23 May of same year sentenced to two years' imprisonment. He now appeals against the conviction.

2. The evidence put before the magistrate was that on 22 January 2002 a police observation was mounted on a building overlooking Yee Pei Square. There, PW1 watched the park in the square with the assistance of a pair of binoculars. The evidence was that he saw two men, one wore a blue jacket and the other in red. He identified the appellant as the man in red. He said he saw the man in the blue jacket give a piece of red coloured paper to the appellant. He said that the appellant placed the suspected banknote in his upper left garment, then took from his mouth a white pellet which he handed to the male in the blue jacket. The man in blue jacket left the park and was intercepted by PW2, and a transparent pellet with white powder was found in his possession. Government chemist subsequently confirmed the white powder was heroin.

3. PW1 continued to observe the appellant after the other man had left and after he had heard by radio that the man in the blue jacket had been arrested, he saw another witness approach and intercept the appellant. The appellant was searched and a hundred dollar bill was found in his upper left pocket. PW1 went to the scene and identified the appellant as being the man he saw with the man in the blue jacket in the park.

4. There is one general ground of appeal and, that is, the general ground that the conviction was against the weight of the evidence, that the evidence of PW1 and PW3 was not sufficiently clear and unflawed to be relied upon to found a conviction, and that the magistrate did not give sufficient benefit of the doubt in forming inferences unfavourable to the appellant and gave undue weight to prosecution evidence in rejecting arguments raised by defence counsel.

5. Mr de Boinville for the appellant particularized the complaints the appellant has in respect of the conviction into three allegations. Firstly, he says that there was an inconsistency between the evidence of PW1 and PW3 and that of PW4 and PW5 as to the search of the appellant. After the appellant had been apprehended, he telephoned the police himself and two officers, being PW4 and PW5, arrived in answer to that call. There was evidence that the appellant was searched immediately upon being stopped. PW1 said in his evidence that the search was done immediately after the arrival of the two uniformed police officers who are PW4 and PW5. The appellant, on the arrival of those two officers, asked them to search him to show that there was nothing unlawful or suspicious on his person. They declined on the basis that the appellant had already been searched but they did not see the search. They relied they said upon the word of PW1 and PW3.

6. There was a conflict on the face of it which the magistrate resolved in this way. She analysed the evidence of PW4 and PW5 and found that she could draw an inference in respect of PW4 and that there was direct evidence in respect of PW5 that a period of time elapsed between the arrival of those two uniformed officers and their approach to the appellant and the searching officer, PW3. During that period of time, she concluded, the search would have taken place given that the evidence of PW3 was that it took place immediately after the arrival of those officers. She held therefore that the search was immediate at that point of time but whilst in the presence of the officers generally at the scene and not in their presence specifically in as much as they were close by and were necessarily witnesses to the search.

7. I am satisfied that the matter was raised fully and argued fully by counsel before the magistrate. She dealt with it at some length in her Statement of Findings and, having analysed it carefully, came to the conclusion that it did not in any way affect the credit of PW1 and PW3. It was a finding of fact and although there is authority to the effect that a appellate court can re-visit matters of inference, that being the case of Whitehouse v. Jordan & Another [1991] 1 All ER 267. I find it is unnecessary for me to re-visit the drawing of the inference as it was proper to the magistrate to do so in all the circumstances.

8. The second particular of the grounds of appeal was that the magistrate was wrong to ignore defence counsel's concerns about evidence relating to the chain from the alleged transaction to the apprehension of the co-defendant. Mr de Boinville argues that the evidence of PW1 was that he lost sight of the man in blue and that that man in blue was apprehended after radio message was given to PW2. He says that the pellet found on the co-defendant was not identified by PW1 and that it ought to have been identified properly and that the identification should be along the common sense lines laid down in R. v. Turnbull [1976] 63 Cr. App. Rep. 133, so that the court could be sure beyond doubt of the validity of that identification.

9. What the magistrate found was that PW1 saw the man in the blue jacket until he left the park or left the area of the park where he said the transaction had taken place. He was then stopped outside the park by PW2. Later, PW1 went to the point where PW2 was holding the man in the blue jacket and identified him as the man he had seen through his binoculars receiving something in white from the mouth of the appellant. There was no issue as to identification made by PW1 of the man in blue. The magistrate was entitled to accept that that man was the same man as had been seen by PW1 with the appellant. The evidence of PW1 which was accepted by the magistrate as being truthful was that something small and white was seen to pass from the mouth of the appellant when he took it from his mouth and handed it to the man in blue. A small white object, being the transaction capsulate containing the drugs, was found on the person of the man in the blue jacket, less than five minutes from the time when PW1 said that he saw it passed to him.

10. I am satisfied that the magistrate is entitled to rely upon that evidence without any further specific identification of the pellet itself in coming to a conclusion that she was sure that the pellet found on the man with the blue jacket was the same as the small white object passed by the appellant to that man.

11. The third particular of the grounds of appeal related to the observation point of PW1. That observation point was in a building overlooking the park. It is clear from the transcript that the officer was somewhat evasive as to the positioning of that observation post in the first instance. This, he said, was because they wished to use it on further occasions and did not wish to lose the value of the secrecy of its location. Counsel for the appellant during the trial and later in her closing address to the court conceded that the witness was able to see what happened through the window from his observation point. She said this :

"... He said he perform an observation in a building and, after some discussions or some - - after some convoluted happenings, the defence concede that it was possible for PW1 to see what happened through the window, from his observation post. But the issues remained on whether the prosecution witness made a correct identification of the defendant."

12. The identification accepted by the magistrate was an identification in the park when the witness identified him as being a man that he had clearly seen through binoculars. Mr de Boinville argues that the concession made by counsel in the court below was as to the physical possibility of being able to see the appellant but not as to the clarity with which he would have done so.

13. The magistrate was in a position to decide this matter of fact. She was addressed on the question of the observation, she came to the conclusion having heard all the evidence that it was a proper and truthful identification of the appellant. I can find no fault in the manner in which she approached or made that finding.

14. I am satisfied having considered the particulars of the grounds of appeal put forward by the appellant that the magistrate has properly weighed the evidence, properly considered the law and that this appeal should be dismissed.