THE QUEEN v. LEE WING LEE

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JUDGMENT

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Liu, J.

1. The applicant was virtually caught red-handed by the police on his way out of the Royal Hong Kong Jockey Club Off-course Betting Centre. He was then arrested. It was on the 14th February 1989, in broad day light about 3:15 in the afternoon.

2. He and one Ma had earlier been kept under police surveillance. According to the police, the applicant wore a brown jacket. In the inner left upper pocket were found five packets of dangerous drugs. There were ten in the right upper inner pocket and another three were found in the lower left inner jacket pocket. In all 18 packages were retrieved from the jacket allegedly worn by the applicant. It is not disputed that the substance contained in these packages was dangerous drugs. It is also not disputed that the number and quantity so found would justify the presumptions arising under the Ordinance for trafficking.

3. The applicant gave evidence and so did Ma. Whilst it is the case of the prosecution that the applicant wore the jacket in question at the time of his arrest, both Ma and the applicant gave evidence before the trial judge that the jacket was in fact held by the applicant but not worn by him. The applicant disclaimed ownership of the jacket. He told the trial judge that he had been given the jacket to carry by Ma when Ma was filling up Mark-Six betting forms. According to both, the applicant and Ma, the applicant pleaded with the police that the jacket was not his and for a chance not to be arrested.

4. At the time of the arrest, Ma denied being acquainted with the applicant and he made no effort to corroborate the assertion of the applicant made to the police. Both of them were arrested, but only the applicant was charged.

5. The sergeant in charge of the team gave evidence and so did the officer who arrested the applicant. The other member of the surveillance team was tendered for cross-examination but the opportunity was not taken up by defence counsel. The applicant was convicted. He feels aggrieved and he now seeks leave to appeal.

6. The principal ground of appeal is one of failure on the part of the trial judge to have proper regard to the credibility of witnesses. The applicant also complains today that he has been unfairly treated by the police as he only was charged after the arrest and his friend, having been arrested, was subsequently released.

7. The trial judge took meticulous care in the examination and evaluation of the evidence. He considered, in particular, five main aspects in the evidence. First, he took the view that having kept the applicant and Ma under surveillance for some time before they entered the off-course betting centre, if indeed Ma had been wearing the brown jacket as alleged, he would have been spotted by the police officers and would on all probabilities have also been charged with the same offence. Secondly, the trial judge could find no real incentive on the part of the police to lie about the applicant either holding or wearing the brown jacket. It would not have made the slightest difference. Thirdly, Ma claimed that he had noticed the presence of the police and wanted to get rid of the jacket so that he would appear calmer in the circumstances, even if confronted by the police officers. Ma told the trial judge that he had been given the drugs shortly before he entered the video game centre for transmission to another source in about half an hour. When he left the video game centre, he met the applicant and he realised that he was possibly being tailed by police. He quickly made his way into the off-course betting centre together with the applicant and he allowed the applicant to carry the jacket so that he could appear calmer even if he should happen to be confronted by the officers. Ma could offer no satisfactory explanation as to why he had not chosen to throw the jacket or the dangerous drugs away instead of pass it over to be held, allegedly, by the applicant. That is the third aspect taken into consideration by the trial judge. Fourthly, acording to the allegation of the applicant, he protested to the police that the jacket was not his. He told the trial judge that the jacket which he subsequently had tried on was tightly fitted. Ma and the applicant are of the same height but of different build. The applicant is of the heavier build. It was conceded that the importance of the jacket for the trial was appreciated by the applicant and Ma. To Ma, the jacket was subsequently returned, and he was instructed, allegedly, by the applicant to bring it to court. The jacket was not made available for examination by the trial judge. Ma sought to excuse himself on account of an oversight. There was no application for an adjournment in order to have the jacket properly produced. The result is that the trial judge was deprived of the availability of the jacket in question. Lastly, while the applicant testified that the jacket was returned to Ma by himself, Ma told the trial judge that the jacket was returned by solicitor and not by the applicant.

8. True enough it is wholly a question of credibility. It was exclusively a jury question for the trial judge. He had considered the evidence carefully and came, in our view, to a right decision.

9. Documents before the court had been gone into very carefully by this court. The trial judge can in no way be faulted; hence the application for leave to appeal is denied.