R. v. LAU TAK MONG

(HIGH COURT)

(Magistracy Appeal No. 539 of 1994)

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal against conviction on one charge of possession of dangerous drugs. The case was heard by a magistrate at the Eastern Magistracy, Mr AR Wright, on 22 April 1994.

2. The particulars of the charge were that on 6 January 1994 outside No.72 Cheung Shing Street, Nam Bin Wai, Yuen Long, the appellant had in his possession 15 plastic straw packets containing a mixture weighing6.01 grammes which contained 1.9 grammes of salts of esters of morphine. The appellant was unrepresented at the trial and upon conviction he was sentenced to 12 months' imprisonment.

3. The evidence adduced before the magistrate was straight-forward. The area around No. 72 Cheung Shing Street, Nam Bin Wai, was what the a police squad in plain clothes led by an inspector, a sergeant and four detective police constables. At around 5.25pm on 6 January the appellant was seen on the street. He was stopped and searched and inside his right trousers' pocket there were two plastic bags. When the contents were examined they contained 15 straws in which was the heroin the subject-matter of the charge.

4. The police asked the appellant what the straws were. He replied "Ah Sir, you should know that". He was further asked "What do you mean?" and he replied "White powder." The appellant was then arrested and after he was given the usual caution he said "Ah Sir, the powder is for my own consumption."

5. It transpired in evidence that one of the arresting police officers DPC48292 (PW2) had arrested the appellant before, in connection with the possession of dangerous drugs. It also transpired that the appellant knew the nickname of the police sergeant, a member of the squad, and the nicknames of a number of other police officers. Of more significance was this. He also knew the paging number of PW2. It was the appellant's case at trial that he was wholly innocent of the charge and that the drugs in question had been "planted" on him. Although in his evidence-in-chief he did not explain the circumstances under which the drugs were planted or what he meant by that accusation, his whole case was focused on one point, as follows.

6. Because of his previous involvement with the police he had become PW2's informer and it was for that reason that PW2 had given him the paging number. PW2 denied that the appellant had ever been an informer and denied having given the paging number to the appellant. It was the appellant's case at trial that since he was a police informer prior to his arrest in January 1994 the police had expectations of him; they expected him to give to the police information concerning drug activities in the area. His case was that the police, being disappointed with his performance, had now in effect trumped up a false case against him.

7. The magistrate was plainly aware of the essential issues and he evaluated the case brought against the appellant carefully. Although the issue as to whether the appellant was or was not a police informer was not vital to any of the ingredients of the charge, it was clearly a very relevant factor on credibility. If there were doubts in the magistrate's mind as to whether the police-witnesses had lied in relation to that fact, then that clearly would have coloured the rest of the evidence concerning the circumstances of the search and discovery of the dangerous drugs. On this central issue this is what the magistrate said:

"I have had the opportunity of seeing each of the witnesses in this matter and insofar as the Defendant is concerned, over an extended period. He repeatedly protests his inability to express himself: this is wholly at variance with his performance throughout this trial - he has made full use of every opportunity to advance his cause. He is cunning and devious. I do not believe his evidence at all. I most certainly do not accept his assertion that he was an informer - I accept the evidence of PW1 and PW2 to the contrary. The entry in the report book on 6 December 1993 highlights his untruthfulness and his willingness to attempt to obfuscate the issues."

8. The reference by the magistrate to the entry in the report book related to a matter put by the appellant to one of the prosecution witnesses, as to whether that witness had met the appellant at the police station on the day in question. The production of the report book refuted the appellant's accusation.

9. On the face of the evidence before the magistrate this was an open- and-shut case. The prosecution evidence was overwhelming. The appellant did not in his evidence-in-chief state what he was doing at Cheung Shing Street on the day in question or what he meant by his accusation that the police had planted the dangerous drugs on him. It was only in re-examination that the appellant attempted to amend his case. The following is recorded in the magistrate's very careful notes.

" I want to explain something I've not said before.

Court: What?

How and where exhibits were found by these police officers.

Court This has never been raised with either witness. I am not prepared to embark on that at this stage."

10. At first blush this may appear to have been a rather harsh line for the magistrate to have taken with a defendant who was unrepresented; but ultimately the responsibility for evaluating the truthfulness or otherwise of the defendant rested with the magistrate. How the defendant chose to conduct his own case was a matter of relevance as far as credibility was concerned. If the magistrate had permitted the defendant in effect to embark upon a fresh case at that stage it would have meant recalling all the police witnesses and putting the new allegations to them; obviously the prosecutor would have been permitted to embark on fresh cross-examination of the appellant.

11. Assume all this had taken place. How would the magistrate have weighed in the scales the defendant's credibility? It seems to me almost inevitable in these circumstances that those fresh allegations, whatever they may have been, coming at that late point in the trial, would have weighed very little in the scales: coming in particular from a party judged "cunning and devious" by the magistrate. I cannot therefore see any substance in the complaint made in this court that the magistrate had erred in not allowing the appellant to embark upon his explanation at that stage; nor do I think that there was a material irregularity at the trial.

12. This appeal therefore revolves upon one point. It emerges in this way. After the appellant had lodged his notice of appeal the magistrate, in accordance with section 114B of the Magistrates Ordinance, gave his statement of findings. He recited the facts found proved, including the admissions made by the appellant when the drugs were first found in his right trousers' pocket. And he gave his reasons for convicting the appellant, which are wholly cogent and convincing. But he went on to say this: Shortly after the receipt of the appellant's notice of appeal, he had heard another matter relating to trafficking in dangerous drugs. That offence allegedly occurred at the end of January, also outside 72 Cheung Shing Street, Nam Bin Wai. That accused person was legally represented at his trial. The same police squad were the arresting officers. In the course of that trial it transpired that the accused in that trial also knew the paging number of PW1 as well as his nickname. PW1 at that trial had denied that the information had been given by him to that accused and gave no explanation as to how that accused had come into such knowledge. The second prosecution witness at that trial was PW2. The magistrate said he found this disquieting and considered it appropriate to abort the trial and order a fresh trial before another magistrate. Having recited these facts the magistrate in his statement of findings then said:

"Had this information been available to me at the time of the Appellant's trial I would have regarded a conviction as unsafe and unsatisfactory notwithstanding the findings I had made and would have acquitted the Appellant."

13. Mr Wilson Chan on behalf of this appellant now relies upon this material to say that I should quash the conviction and order a re-trial. The magistrate's views must of course be borne in mind, but the matter is nevertheless one for me to decide. I ask myself this question: what is the value and weight of this material on this appeal? The central issues for the magistrate were the circumstances under which this appellant came to be arrested in the street on 6 January this year, and in particular whether, as the police alleged, drugs were found upon him and whether upon being asked he had made the admissions which he allegedly did.

14. In this regard the magistrate had made clear and unequivocal findings. of fact. There are in criminal trials often unexplained circumstances. One of those circumstances relevant in this case is how this appellant came to be in possession of the nickname of the sergeant and in particular the paging number of PW2. PW2 simply was unable to give an explanation; and it is difficult to see how that issue can be further explored even on the basis of the fresh material disclosed in the magistrate's statement of findings. Assuming that there were a fresh trial and instead of having only one person with knowledge of PW2's paging number there were two: that is to say, this appellant and the other accused. How does this assist the defence in materially shaking the credibility of PW2 or the other police witnesses? In my judgment the matter goes to only a peripheral issue in this trial and is not of such weight as to satisfy me that the conviction is unsafe and unsatisfactory. For these reasons the appeal must be dismissed.