THE QUEEN v. LEE YIN

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J U D G M E N T

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Power^, J.A.:

1. The applicant in this matter faced two charges, one of trafficking in dangerous drugs and one of possession of dangerous drugs for the purpose of unlawful trafficking. A further charge against another defendant to whom it was alleged that he sold dangerous drugs was heard together with these two charges. The 1st charge against the applicant alleged that on 12th April at the garage at Kam Shek Lane Village opposite Block 11, Lam Tin Estate, Kowloon, unlawfully trafficked in a dangerous drug namely 75.85 grammes of a mixture containing 6.65 grammes of salts of esters of morphine. The 2nd charge against the applicant alleged that on the same day and in the same village but at an unknown wooden but he had in his possession 3.8 grammes of a mixture containing 0.25 grammes of salts of esters of morphine for the purpose of unlawful trafficking. He was convicted of both charges and now appeals against the conviction on the 1st charge on which he was sentenced to imprisonment for 6 years.

2. The Prosecution' s case, and we take the statement of it from the Reasons for Verdict of the trial judge, was that three policemen on surveillance duty observed the other defendant purchase drugs from the applicant. A search was then made of the applicant's wooden but which discovered the bag the subject of the second charge. The three police officers said that at about 6 a.m. on 12th April they had a good view of the yard where the applicant was standing and that they all observed the other defendant walk into that yard and, at about 6.08 a.m., join the applicant. They said that after a short conversation they saw the applicant leave the other defendant and squat in front of a silver grey car DG 6719. They could not see what was happening but shortly afterwards the applicant walked to the other defendant and passed something to him. It was their evidence that they saw the other defendant slip something into his left hand pocket and that immediately afterwards they apprehended him and found a red plastic bag containing the dangerous drugs the subject of the charge which he faced in his left jacket pocket. Upon apprehension the police officers gave evidence that the other defendant said "The white powder is for my own consumption. I bought them for $500." The police officers said that they searched the applicant and found a key in his right denim jacket pocket, cash of $2,600 from his left trousers pocket and $500 in $100 notes in his right trousers pocket. They were then told of the apprehension of the applicant and the search of the wooden hut in which the drugs, the subject of the 2nd charge were found.

3. The trial judge records, and this matter is the subject of one of the grounds of appeal that at the request of Mr Mullick who appeared for the applicant at his trial, the Crown produced a record of personal property taken from the applicant and the other defendant at the Kwun Tong Police Station in the middle of the afternoon of the 12th of April before their overnight detention. Mr. Mullick relied on these records to contradict the police evidence as they showed that the other defendant had $2,656.50 on his person and the applicant had only $257.40.

4. The applicant did not give any evidence at the trial. The other defendant gave evidence that he had purchased the drugs not from the applicant but from some other person and had paid $1,500 for them.

5. The trial judge accepted the avidence of the police officers and was satisfied that the other defendant had lied and made the observation that he had done so not only for himself but also for the benefit of the applicant She said:

"having examined all the evidence before me, I am satisfied beyond reasonable doubt that the officers spoke truthfully when they related they saw D2 pass something to D1. This must have been the drugs found on D1 and for which the $500 found on D2 was payment. I do not find it unsatisfactory that the officers did not actually see D1 pass the money to D2. The money secreted in the palm could have changed hands at the same time as the package. Indeed if the officers were fabricating the evidence they might well have added this detail. Nor do I find it curious that the payment was only $500. Whatever private arrangement D1 had with his regular supplier one does not know. It may have been a part payment. It may be D2 was being exceptionally generous with a regular client. It is not for me to speculate. Nor do I find P10 And P11 (the personal property records) reason to doubt the testimony of P W.2 and P.W.3. D1 himself admitted he was, in the same cell as D2, and it is evident from P.W.3's testimony, both defendants were in the same cell from at least 12.36p.m. to 3.49p.m. There was ample opportunity for them to exchange the money. I reject D1's story of how he came to be carrying so much money

    The Crown has satisfied me beyond reasonable doubt that D2 (the applicant) sold the drugs to D1 that morning. He is accordingly found guilty of the 2nd charge and convicted of that charge."

6. The Grounds of appeal which have been argued by Mr. Alderdice fall into three parts. The first is contained in Grounds (1), (2) and (3) which read:

"1.    The learned trial judge erred in finding that the observation evidence of PW1, PW2 and PW3 was conclusive proof that an illegal transaction involving the trafficking of dangerous drugs had taken place between the Appellant and the 1st Accused.

2.    The said evidence of observation was inconclusive, and capable of grounding more than pool inference. The learned trial judge erred in relying on that inference alone, which might have established guilt, inspite of the fact that there was a reasonable inference to the affect that no such transaction had taken place.

3.    In all the circumstances of the case, the said observation evidence was unsafe and unsatisfactory."

7. We pro satisfied that there is no substance in the suggestion that there was he evidence upon which the learned trial judge could safely conclude that the only reasonable inference to draw from the facts was that a transaction had taken place. There was clear evidence of a transaction from the police officers and, the only evidence to the contrary, from the other defendant was rejected in specific terms by the trial judge.

8. There is one matter to which we consider reference should be made. The trial judge, when dealing with this matter said that what passed between the applicant and the other defendant "must have been the drugs found on (the other defendant) and for which the $500, found on (the applicant), was payment". The trial judge was not entitled to make the finding that the other defendant had paid the applicant $500 for the drugs as the only evidence in this regard came from an admission by the other defendant to the police officers at the scene which he denied making in cross-examination and which was, therefore, not admissible against the applicant. No objection was made to the admission of this evidence here or below where Mr. Mullick sought to use it to the applicant's advantage. But it was clearly inadmissible and should not have been used as it was by the trial judge.

Ground (4) states that

"The evidence of the Crown, relating to the value of the said drugs, as allegedly stated by the 1st Accused, was not capable of belief or alternatively, was inconsistent with the generally known market value of the said drugs."

This ground in the outcome was not pursued and it is not necessary for us to deal therewith.

Ground (5) is that

"The learned trial judge, in seeking to rationalise the apparent inconsistency between the evidence of the Crown witnesses and the prisoners' property record, relied upon speculation instead of evidence. In doing so, the learned trial judge failed to give the applicant the benefit of the doubt."

This ground arises out of the apparent inconsistency between the record of the prisoner's property and the police evidence. The trial judge made this finding:

"Nor do I find P.10 and P.11 (the personal property records) reason to doubt the testimony of P.W.2 and P.W.3. (The other defendant) himself admitted he was in the same cell as (the applicant) and it is evident from P.W.3's testimony, both defendants were in the same cell from at least 12.36 p.m. to 3.49 p.m. There was ample opportunity for them to exchange the money. I reject (the other defendant's) story of how he came to be carrying so much money."

Her indication as to how the money might have changed hands was no more than a common sense observation. She was making no finding in that regard. Her material finding was the rejection of the evidence of the other defendant. This was a finding which she was entitled to make upon the evidence and having made that finding she was entitled to be satisfied that there was no reason to doubt the testimony of the police officers as to their observations when they made their original search. There is, in our view no substance in this ground.

9. We do not consider the wrongful admission of the evidence of the statement to the police of the other accused to be a matter of any materiality. There was ample evidence which was accepted, by the trial judge of a transaction in which dangerous drugs were passed. We are satisfied that there was no miscarriage of justice occasioned by the wrongful admission of the evidence and that this is a proper case therefore for the application of the proviso.

10. The application for leave to appeal against conviction will therefore be dismissed