HKSAR v. SO FONG CHAP

CACC 342/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 342 OF 2005

(ON APPEAL FROM DCCC No. 267 and 467 OF 2005 (Consolidated))

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JUDGMENT

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Hon Yuen JA (giving the judgment of the Court):

1.  This is an application for leave to appeal against conviction.  The Applicant was convicted by District Judge Chua of two offences of trafficking in dangerous drugs. 

2.  It was alleged in respect of the 1^st charge that on 11 January 2005 he was intercepted by police officers PW2 and PW3 and found with 26.57 gm of a mixture containing more than 20 gm of heroin on his person. 

3.  It was alleged in respect of the 2^nd charge that on 7 April 2005 he was intercepted by police officers PW7 and PW8 and found with 30.56 gm of a mixture containing more than 22 gm of heroin on his person. 

4.  The Applicant was alleged to have made admissions on both these occasions.  At trial he disputed the voluntariness of these statements but they were admitted by the judge.

5.  The Applicant’s defence at trial was that he was framed by the police.   He said he was the principal tenant of a flat which was known to be a divan.  The police wanted to close it down but had difficulties locating the landlord. 

6.  He said that in November 2004, i.e. about two months before the 1^st charge, another police officer PW1 (a member of the team which included PWs 2,3,7 and 8) had asked for his assistance in divulging information about the landlord. 

7.  To this end, the Applicant said, he was given two telephone numbers, one being the number of the squad office of the team, and the other being a mobile telephone number (9554-8658).  It was an agreed fact that the number of the squad office was correct.  It was also agreed that the Applicant’s own mobile telephone had been used to call this number twice on 14 January 2005, and to call the mobile telephone number 9554-8658 twice on 21 February 2005.  Both these dates were after the 1^st offence but before the 2^nd offence. 

8.  The Applicant had refused to assist PW1, and he says that was the reason why, when the police found drugs at the staircase leading to the divan, he was framed with these charges.

9.  At trial, defence counsel asked PW1 if he had a telephone with the number 9554-8658.  He denied it.  He also denied that that number belonged to any of his colleagues.  At that point, defence counsel asked the judge to make an order to obtain from the telephone companies

(i) incoming call records (if any) from the number 9554-8658 to the Applicant’s mobile telephone, and

(ii)  information of the identity of the registered owner of that number.

10.  Defence counsel said the ground for asking for order (ii) was simply because even though "we believe probably that that phone number  is not registered in his name, ... we are just thinking if there’s a possibility that it would be in his [PW1’s] own name" (p.108 C-F).  When prosecuting counsel objected on the ground that it amounted to a ‘fishing expedition’, defence counsel candidly said "we believe it may not be helpful" (p.108 C).  The judge indicated that she was prepared to make an order for (i) but not for (ii), at which point defence counsel said he was "happy with that" (p.108 J-K). However upon further reflection the judge did not make order (i) either, because obviously order (i) on its own would not be probative of anything.

11.  The Applicant was found guilty and convicted.  It is now submitted on the Applicant’s behalf that the judge had failed to give any adequate reasons for accepting the prosecution witnesses’ evidence and for rejecting the Applicant’s.  It is also submitted that the judge had failed to resolve the conflicts in evidence regarding the alleged previous contact and the colour of the jacket the Applicant was wearing at the time of the second offence.  It is submitted that the judge should have given an adjournment so as to obtain orders (i) and (ii).

12.  We do not consider that the judge had failed to give adequate reasons for accepting the prosecution witnesses’ evidence and for rejecting the Applicant’s.   The prosecution witnesses’ case was simple, and the judge was obviously impressed by the fact that they readily accepted that they had wished to close down the divan (para. 21) and by the straightforward manner in which they gave their evidence (para. 23).

13.  As for the discrepancy in the colour of the jacket, there was no dispute that he was in fact wearing a jacket at the time of the 2^nd offence.  That being so, it would itself be odd for the officers not to describe accurately the colour of the jacket in fact worn.  There would have been no point and every disadvantage in doing so.  The lacuna in the defence case was the failure to establish that a jacket he produced in court was the same as the one he wore on arrest.

14.  It is said that the judge ought at least to have mentioned this issue. In a sense she did, because her Reasons for Verdict addressed an issue about the shirt alleged by the Applicant at trial to have been worn on his arrest and it became evident that that story was palpably false.  That being so, the judge no doubt took the view that the jacket issue was in the event of no help to the Applicant and there was no need to say anything more.  This ground is not established.  

15.  Apart from the colour of the jacket, it would appear that there was no substantive dispute of any bearing.  It was not disputed that the Applicant was arrested at the time and place alleged nor was there any dispute as to identity.  Essentially his defence was that the police found some drugs at the staircase and framed him because of his refusal to assist them in contacting the landlord.

16.  Finally as to the orders regarding the telephone number, defence counsel admitted in effect that this was a tenuous attempt to look for evidence that might support the Applicant’s case.  In our view, the judge was entitled to exercise her discretion not to disrupt the trial for that attempt to be made and Mr Wong was wise not to pursue this point.

17.  Accordingly this application is dismissed.