HKSAR v. TSE WAI MING AND ANOTHER

HCMA1062/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1062 OF 2003

(On appeal from KCCC7154 of 2003)

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J U D G M E N T

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INTRODUCTION

1. Both appellants were convicted after trial of the single amended charge of, jointly together with Li Wai Kit, having sold liquor without a licence, contrary to sections 17(3B), 46(1) and 46(3) of the Dutiable Commodities Ordinance, Cap.109. The alleged sale was said to have occurred at premises at 348 Disco and Karaoke, located on 2/F, 348 Nathan Road, Kowloon on 22 February 2003. Each appellant was fined $3,000. Each appeals against conviction only.

THE EVIDENCE ADDUCED AT TRIAL

2. At trial the prosecution adduced evidence from two police officers, PW1 and PW2, who posed as customers at the premises in question in the early hours of the morning of 22 February 2003. A further witness, PW3, a sergeant of police, was called to the premises at a later stage to deal with the issue of arrest of the 1st and 2nd appellants. The learned magistrate rejected a submission of "No Case" on behalf of the 2nd appellant at the close of the prosecution case. Neither the 1st nor the 2nd appellant gave or called evidence at the trial.

THE PROSECUTION CASE

3. The prosecution case, in its essence, is that having entered the premises and taken their seats at what in evidence was described as a table, from the photographs appeared to have been more a counter, PW1 and PW2 were approached by a man clad in a green vest, which garment they noticed was worn by others at the bar counter which they had seen as they entered the premises from the escalator. They had seen persons there clad like that handing out water to customers. A conversation ensued between the male clad in that green vest. PW1 and PW2 testified as to the terms of this conversation. PW1 identified the 1st appellant as this person. That identification was at issue in the trial and in this appeal. PW1 asked that man to order drinks. The man asked what she wanted to order. PW1 asked for half a dozen cans of Heineken. The meaning of what was said by this male in reply to PW1 is also in issue. I will come to deal with that in more detail later.

4. About a minute after that male had left, another male, Li Wai Kit, named in the amended charge as a party to the offence, approached PW1 and PW2. He was referred to as D3 by the learned magistrate in his Statement of Findings. He asked PW1 and PW2 whether or not they had ordered drinks. PW1 replied in the affirmative and repeated her request for half a dozen cans of Heineken. D3 returned with those six cans inside a white plastic bag. He produced what was called a "receipt" although Mr Pallaras, for the 1st and 2nd appellants, pointed out properly so-called an "invoice", and asked for $300. Since D3 was unable to give change for the $500 note PW1 tendered, she followed him to the cashier's desk at the bar counter. On the sketch plan exhibited before the learned magistrate, it has been noted that this place was described as the "snack counter". There, PW1 met the 2nd appellant. D3 gave the 2nd appellant a $500 note and asked her to take $300. The 2nd appellant did that by retaining the $500 note in the cashier's drawer from which she took out two $100 notes which D3 handed to PW1.

5. On their initial entry to the premises, PW1 and PW2 had seen on the floor in front of that bar counter/snack counter three or four white plastic bags containing cans of beer.

THE ISSUES AT TRIAL

6. Issue was taken at trial of the accuracy of the identification of the 1st appellant by PW1 as the person of whom she first made the request for half a dozen of Heineken. Also in issue was the meaning of what it is she attributed to that person in his reply to her, namely "OK ah, but our premises no liquor licence, get someone help you buy."

7. Of the issues of identification, the considerations identified as being relevant in R. v. Turnbull, 63 Cr. App. R. 132 were apposite, given the circumstances in which the meeting of PW1 and PW2 with the person first asked by PW1 to supply her with half a dozen cans of Heineken had taken place. PW1 had not met or seen that person before, the premises were dark save for low lights interrupted by flashing disco lights and the meeting was, on any view, for a relatively short period of time.

8. The meaning of the oral response of that person, even if it was proved to be the 1st appellant, it was said was equivocal and opened to different interpretations, not only that the 1st appellant would get someone to help PW1 buy the beer.

9. On behalf of the 2nd appellant, issue was taken in both a "No Case" submission and the closing speech that the evidence against the 2nd appellant, even taken at its highest, did not permit it to be inferred that she was a party to the sale of the beer to PW1, that is, knowingly.

10. In the closing speech, it was put in this way :

".... the only evidence against the 2nd defendant is, basically, that she was working at a casher till at the snack bar, according to the plan of the snack bar. And she dealt with the money, the $500 that was marked money, given over by PW1 to the person we call D3, and she gave change for the $500.

There's no evidence that she was told or, in my submission, no evidence to suggest that she could possibly have known that that transaction involved the selling of alcohol. ...."

PERFECTED GROUNDS OF APPEAL

(A) The 1st appellant

(1) Ground 1

11. By this ground, it is submitted that in his consideration of the issue of the accuracy of the identification by PW1 of the 1st appellant as the person with whom she had the initial conversation about the half dozen cans of Heineken, the learned magistrate erred in law when, in dealing with the time available to PW1 to observe that person, he said :

".... I did not think it necessary to decide whether the conversation lasted 10 seconds or 20 seconds or some other duration. ...."

12. It is said that the period of observation by an eye-witness is crucial. In his written submissions, Mr Pallaras made reference to the very well-known passages in Turnbull in support of that assertion. It is to be noted that in the judgment of the five-member Court of Appeal delivered by Lane LCJ in the guidance that is set out to trial judges as to directing the jury to examine closely the circumstances in which the identification came to be made, the very first specified matter adverted to is :

"How long did the witness have the accused under observation?"

13. However, it is necessary to have regard to the impugned words used by the learned magistrate in the broader context in which he came to use them. Firstly, it is to be noted that in his oral Reasons for Verdict, it was the magistrate himself who adverted in terms to the need for the court to bear in mind what was said in Turnbull. He said :

".... I agree with Mr Francis that identification was not conducted - observation was not conducted in the best of circumstances. I will not go into the details reminded me by Mr Francis, but I think Mr Francis is reminding me that I should bear in mind what was said in the case, leading case on identification evidence, namely the case of Turnbull."

Secondly, his Statement of Findings makes his approach crystal clear :

"16.

PW1 was the only witness on identification of D1. The observation of D1 was made in trying circumstances. Lighting was dim. PW1 described there being the equivalent of about 10 watts of lighting supplemented by flashing beams of light. It was also clear that neither PW1 nor 2 had seen D1 before the morning in question. PW1, however, said she observed the face of D1 from less than 4 inches because of the din in the Disco they had to come close to talk. PW1 also purposely spoke slowly. PW1 said she was thus able to observe the face of D1 for 30 to 40 seconds. Given the content of their conversation as told by PW1 in evidence, I did not think it would last as long as 30 to 40 seconds despite the slow-play by PW1. However, it was clear that no one was timing the event. The duration indicated could at best be an estimate no matter how one insisted on its accuracy. I did not think PW1 was embellishing her evidence. I did not think it necessary to decide whether the conversation lasted 10 seconds or 20 seconds or some other duration. It sufficed for me to conclude that PW1 had more than a fleeting glimpse of the face of the person she talked to. She observed this person from a close distance and she was making that observation on purpose. Lighting conditions might have been less than desirable but I concluded that PW1 was able to see clearly the face of the person she stopped to order drinks from viz. D1."

14. Clearly, the learned magistrate there rejected the evidence that PW1's period of observation had been 30 to 40 seconds. Equally, he was satisfied, at the other end of the scale, that it was more than a fleeting glimpse. In saying what he did about the time the conversation took, I do not understand him to mean that he was ignoring that issue, rather he was saying that in the circumstances in which it took place, where it was necessary for the participants to come within inches of each other to be able to be heard, the time taken for the dialogue enabled PW1 to see clearly the face of the person with whom she placed the initial order. Having rejected the 30 to 40 seconds estimate of PW1 as too long, all the magistrate was saying was that it was not necessary for him to make a finding of a specific stipulated time, no more than that.

15. There is no substance in this ground of appeal.

(2) Ground 2

16. By ground 2, the 1st appellant submits that the magistrate erred in law by finding on his own knowledge of Cantonese that the translation of what PW1 had attributed to the 1st appellant, namely, "get someone help you buy" could also be translated in the same way as the words PW2 attributed to the 1st appellant, namely, "I'll get someone to buy for you".

17. In his Statement of Findings, the learned magistrate said of the matter :

"21.

PW2 also gave evidence as to the words spoken by D1 [the 1st appellant]. His version indicated D1 as having said, amongst other things, 'I'll get somebody to buy for you'. Strangely enough, Defence did not tax PW2 on this aspect. The discrepancy between PW1 and 2 concerning D1's words was more apparent than real. I am acquainted with the Cantonese dialect. PW1's version could mean and be translated into English in terms of PW2's version. ...."

18. Miss Lo, for the respondent, concedes that it was inappropriate for the magistrate to have used his knowledge of the Cantonese dialect of the Chinese language to assess the evidence while the trial was conducted in English.

19. In my judgment, the learned magistrate was in error in having recourse to his own interpretation of the Cantonese words used by PW1 and attributed to the 1st appellant, which translation is different from the translation made in open court and relied upon in the trial, in particular in his submissions by the solicitor appearing for the 1st appellant.

20. However, it is clear that in analyzing the meaning to be given to these words given in evidence by PW1 that is attributing the words to the 1st appellant, the learned magistrate relied upon the translation of those words given by the interpreter. That much is made clear by the analysis he made of suggested alternative meanings submitted by the 1st appellant's representative at trial :

"	19.	Whilst it was noisy in the Disco area, I accepted that PW1 and D1 conversed at a close distance and both were speaking loud. I accepted they had the conversation deposed to by PW1. At a certain point during cross-examination of PW1 a query was raised regarding the words PW1 said in-chief as being uttered by D1. Ultimately, all agreed to the version as recorded in paragraph 11 above. That version might not be grammatically correct in English but it represented an almost word-for-word English translation of the words allegedly uttered in Cantonese by D1. Defence solicitor went on to submit that the words could be interpreted to mean that liquor was not sold and if PW1 wanted any, then she would need to make arrangements herself.
	20.	I found no merits at all in this suggested interpretation. I considered it inconceivable that whilst saying that no liquor was sold, D1 would be telling PW1 herself to buy or arrange to buy liquor for consumption on the premises. This would be all the more so in the light of uncontroversial evidence that PW1 was not even allowed to bring in her bag; she had to check it into a locker. Can it seriously be suggested that somehow she would be allowed to bring in her own beer or that she could arrange for someone to deliver her beer? Prosecution evidence, which I accepted, was that other staff of 348 (including D3) were the ones delivering cans of beer in white plastic bags. This further pointed to the unrealistic nature of the suggested interpretation."

21. If the learned magistrate had relied on his own translation of those words of PW1's evidence, "I'll get someone to buy for you", that would have been the simple short answer to the submission. It was not the analysis and answer that the learned magistrate gave.

22. It is to be noted that in coming to his determination of what it was that was meant in the words attributed to the 1st appellant, the learned magistrate had available to him the evidence of not only PW1 but also PW2. Of the latter's evidence the words included "I'll get someone to buy for you", and as I have said already, the learned magistrate noted that the "Defence did not tax PW2 on this aspect" as aforesaid.

23. In the result, I am satisfied that the learned magistrate's error in having recourse to his own alternative translation of the evidence of PW1 of words attributed to the 1st appellant played no part in his determination, namely :

".... I was satisfied that what D1 meant was that there was no stock of beer because 348 no longer had a liquor licence but that D1 would get someone to help PW1 buy the beer she wanted."

(3) Ground 3

24. By ground 3, complaint is made that since the words attributed to the 1st appellant by either or both PW1 or PW2 contain no specific reference to the 1st appellant arranging for liquor to be sold to them on the premises, the learned magistrate erred in reading that meaning into those words.

25. The learned magistrate's findings as to the role of the 1st appellant was in these terms :

"30.	I accepted the evidence of the 3 Prosecution witnesses. Though the delivery of beer to and the collection of money from PW1 was not by D1, I found that D1 was part and parcel of that sale of beer. He did, as he told PW1, make arrangements for provision of the beer."

26. Of course, the evidence relevant to the case of the 1st appellant at trial was not merely the conversation in which the words were interpreted to the 1st appellant, but also what happened immediately afterwards. The magistrate described the evidence thus :

"12.

D1 then left. About a minute later, D3 appeared. He wore a grey jacket with green shoulders. D3 approached Table 67 and asked whether the Prosecution witnesses had ordered drinks. PW1 answered in the affirmative and confirmed the order for half a dozen Heineken. D3 nodded and left. Several minutes later D3 returned with a white plastic bag similar to the ones in front of the Bar counter. D3 showed the bag to the Prosecution witnesses and PW1 saw 6 cans of Heineken beer inside. D3 produced a receipt and said to PW1 '300'. ...."

(4) Conclusion

27. I am satisfied that the learned magistrate was entitled to make the findings he did as to the role of the 1st appellant. These grounds fail.

(5) Overall conclusion on the 1st appellant's appeal

28. There is no merit in any of the grounds of appeal against conviction advanced on behalf of the 1st appellant and his appeal is dismissed.

(B) The 2nd appellant

29. Complaint is made on behalf of the 2nd appellant that there was insufficient evidence upon which the learned magistrate could have been satisfied beyond reasonable doubt that the 2nd appellant was a party to the sale of liquor to PW1 on the premises.

30. The learned magistrate's description of the prosecution evidence in respect of the 2nd appellant is as follows :

"13.

D3 led PW1 to the cashier's place at the Bar counter. D2 [the 2nd appellant] sat there as the cashier. D3 gave Exhibit P15 [the $500 note] to D2 and told her to take '300'. D2 put Exhibit P15 into the cashier's drawer and from that same drawer took out 2 $100 notes (Exhibit P16). D3 gave Exhibit P16 to PW1. PW1 asked D3 for the receipt but D3 said it would not be given."

31. That evidence is to be viewed, of course, in the context of the evidence of PW1 and PW2 noted earlier as to the surrounds of bar counter :

"9.

Right at the top of the escalator and to the left was a Bar counter. The cashier also operated from the Bar counter (see Exhibit P4(a)). 2 to 3 persons wearing green vests were behind the Bar counter handing out water to customers. In front of the Bar counter and on the floor were 3 to 4 white plastic bags containing cans of beer. The bags were stacked one on top of the other. The bags were wet and their sides were clinging to the cans inside, thus PW1 and 2 could see that the bags contained cans of beer."

32. In his determination that the 2nd appellant was guilty of the offence, the learned magistrate said :

"31.

As far as D2 was concerned, she was the cashier who took PW1's $500 note (Exhibit P15) from D3. She put it in the cashier's drawer. From the casher's drawer she provided change of $200 (Exhibit P16). Never did she ask what the transaction was all about. The evidence was clear that plastic bags containing beer were ostensibly stacked close to D2's cashier counter. The irresistible inference I drew was that D2 knew the transaction concerned the sale of beer. She participated in that transaction by taking money and providing change for the sale of the beer to PW1 ...."

33. There was no evidence before the learned magistrate of anything other than beer being visible at the bar counter. That state of evidence is to be viewed in the context that the 2nd appellant's knowledge of the nature of the transaction was throughout the crucial issue. It is to be remembered also that the evidence was that PW1 had accompanied D3 to the bar counter/snack bar where the 2nd appellant and the cashier's desk were, that is, PW1, a customer who accompanying a member staff to the cashier's desk.

Conclusion on the 2nd appellant's appeal

34. In my judgment the learned magistrate was entitled to draw the inference that he did draw, namely that the 2nd appellant knew the transaction was the sale of beer. This ground of appeal fails.

35. There is no substance in any of the grounds of appeal advanced on behalf of the 2nd appellant and her appeal is dismissed.