HKSAR v. PEACH, NATHANIEL JAMES

HCMA 406/2022

[2023] HKCFI 1927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 406 OF 2022

(ON APPEAL FROM STCC 2962 OF 2021)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial before a magistrate[1] of the offence of “Trafficking in a dangerous drug”[2], namely 7.1 grammes of cannabis in herbal form. The appellant was sentenced to imprisonment for 3 months and 2 weeks.

2.  At the hearing of the appeal I dismissed his appeal against conviction and said I would hand down my reasons for doing so. This I now do.

TRIAL HEARING

The Prosecution case

3.  The prosecution called 2 witnesses at trial. PW1 a decoy police officer and PW2 another police officer who arrested the appellant in an operation at Hang Ha Po village on 15 December 2020.

4.  It was the prosecution case that PW1 whilst conducting a police operation searched for sellers of cannabis on line on Instagram. On 24 November 2020, PW1 contacted the user of an account named Greenmonke628. PW1 agreed with the user and arranged to buy cannabis (“the drugs”) the following day.

5.  At about 2313 hours the following day on 25 November 2020, the user of Greenmonke628 contacted PW1 through the message function of Instagram to meet for the purchase of drugs. Shortly thereafter the user sent PW1 a photo through Instagram showing PW1 the location of his arrival (“the arrival photo”). PW1 went to that location and saw only one vehicle with the registration VS7512 parked at that location. He therefore approached VS7512 and showed the appellant the arrival photo he had just received. The appellant, a foreign male, was the only person in VS7512 and was in the driver’s seat. The appellant alighted from VS7512 and sold him the drugs.

6.  Approximately three weeks later on 15 December 2020, PW2 arrested the appellant during a police operation at Hang Ha Po Village. PW1 who was present at the operation identified the appellant as the seller of the drugs to him on 25 November 2020. During this operation PW1 searched for and found VS7512 parked in the vicinity of Hang Ha Po Village.

7.  It was the prosecution case that PW1 was able to correctly identify the appellant as the person who sold the drugs to him on 25 November 2020.

Undisputed evidence at the trial

8.  At the trial before the magistrate, there was no dispute between the prosecution and the defence on the following evidence:

(i)  PW1 was assigned as a decoy police officer as part of a police operation to search for on line suspected cannabis sellers on a mobile phone. PW1 set up an Instagram account “Banana807.”  PW1 located an Instagram account called “Greenmonke628” a suspected on line cannabis seller. The post had multiple pictures of cannabis and other drugs.

(ii)  On 24 November 2020 PW1 through the message function of Instagram contacted Greenmonke628. An agreement was made between PW1 and the user (“the user”) of Greenmonke628 for:-

(a)  the purchase of the drugs;

(b)  for the drugs to be delivered to Tai Wo Hau Estate, Kwai Chung at about 11 pm on the 25 November 2020 to the location sent by PW1 to the user by means of a screen capture on Google maps;

(c)  the total cost of $1,383 would be payable by PW1 to the seller for the drugs and delivery.

(iii)  on 25 November 2020 at 2340 hours outside Tai Wo Hau Community Centre, Kwai Chung (“the location”), PW1 purchased 7.1 grammes of cannabis from a person (“the seller”) to whom he paid cash of $1,383 (“the transaction”).

(iv)  PW1 did not arrest the seller after the transaction.

(v)  In an anti-drugs operation at Hang Ha Po, Tai Po on 15 December 2020, PW1 identified the appellant as the seller of the drugs to him on 25 November 2020 and the appellant was arrested for the present offence.

(vi)  After the appellant’s arrest on 15 December 2020 he voluntarily took part in three Video Recorded Interviews (VRI) under caution. In the VRI’s the appellant admitted inter-alia that:-

(a)  His family lived in an iron hut in Hang Ha Po;

(b)  He was struggling and having issues with his wife and therefore he did not sleep in the hut but used VS7512 to sleep in at night;

(c)  he had driven VS7512 around Kwai Chung late at night on 25 November 2020;

(d)  the reason why he was in the Kwai Chung area late at night on 25 November 2020 was because he worked as an Uber driver that evening. He had collected a passenger from Lan Kwai Fong and dropped the passenger off at Kwai Chung; and

(e)  although VS7512 was registered in the appellant’s wife’s name, he was the only person who drove VS7512.

The defence case

9.  The appellant elected not to testify nor call any defence witnesses at the trial. It was the defence case that although the appellant was driving VS7512 in or around Kwai Chung late at night on 25 November 2020 he never sold any drugs to PW1.

10.  The appellant’s counsel at trial, Mr Kevin Wong, submitted that any identification of the appellant was unreliable because it was made in dim or insufficient lighting.

11.  Mr Wong further submitted the police had information about the appellant and wanted to “get him.”  The thrust of the defence case was PW1 falsely accused the appellant as the one who sold drugs to PW1. PW1 was not telling the truth when he said that on the night in question there was no pedestrian railing at the location and therefore PW1 was an unreliable witness.

Issues at trial

12.  The main issues at the trial were the credibility of PW1 and the correctness of his identification of the appellant as the seller of the drugs to PW1 on 25 November 2020.

The magistrate’s findings

13.  The magistrate was alive to the fact that the key issue at trial was the correctness of PW1’s identification of the appellant and the reliability and credibility of PW1’s evidence. He attached no weight to the appellant’s exculpatory statements in the VRI’s. After careful consideration and evaluation of the evidence, the magistrate accepted PW1’s evidence in full and was satisfied that PW1’s identification of the appellant as the seller of the drugs was proven beyond reasonable doubt.

The Appeal hearing

14.  The initial hearing of the appeal was adjourned for a transcript of PW1’s evidence to be supplied to the parties and the court.

The appellant’s application to adduce fresh evidence

15.  At the adjourned hearing on 25 April 2023, the appellant sought to adduce fresh evidence in the form of images from Google maps dating back over 10 years showing there was a pedestrian railing at the location on the night in question to show that PW1’s evidence that there was no pedestrian railing at the location was a lie and therefore the magistrate erred in finding PW1 an honest and reliable witness.

16.  Ms Gladys Chan, SPP (Ag.) and Ms Natalie Chung, PP for the respondent objected to the appellant’s application to adduce new evidence.

Ruling on application to adduce fresh evidence

17.  The appellant’s application to adduce fresh evidence at the hearing of the appeal was considered under s.83V of the Criminal Procedure Ordinance cap 221. I found that the evidence if received would not have afforded the appellant any ground for allowing the appeal. Further, the appellant’s application to adduce fresh evidence was refused as the appellant’s counsel had cross‑examined PW1 at the trial on photos[3] taken of the location showing the pedestrian railing. The appellant gave no explanation for the failure to adduce those Google images at the trial.

Grounds of Appeal

18.  The appellant was not legally represented at the hearings of his appeal. His grounds were set out in two letters dated 13 January 2023 and 24 February 2023 and can be summarized as follows.

Ground 1

19.  The magistrate erred in accepting the evidence of PW1 and finding him credible and reliable.

Ground 2

20.  The magistrate erred in accepting PW1’s identification of the appellant. The appellant challenged PW1’s identification of him in that PW1 had only ever seen the seller on one occasion which was on 25 November 2020. At the time of identification there was insufficient lighting for any proper identification to be made. PW1 did not identify the appellant in an identification parade but only after he was intercepted by other police officers in another operation in Hang Ha Po three weeks later on 15 December 2020.

21.  Despite the police going to the appellant’s home after his arrest no similar clothing to the seller’s or drugs was seized therefore the appellant was not the seller of the drugs to PW1.

Ground 3

22.  In the absence of other supporting evidence, the magistrate erred in finding the prosecution had proved the charge against the appellant beyond a reasonable doubt.

Ground 4

23.  The appellant asserts this was a “witch hunt” against him. If my understanding of the appellant’s argument is correct he was relying on the same submissions as Mr Wong the defence counsel at the trial. That is that the police had “raided” the appellant’s home numerous times yet nothing illegal or illicit was found therefore this was a deliberate lie or frame up by the police of the appellant’s commission of this offence.

CONSIDERATION

Ground 1

24.  The magistrate accepted the evidence of PW1 and found him to be an honest and reliable witness[4]. The magistrate considered the evidence of PW1 and the defence criticisms of PW1’s evidence. After evaluating the evidence he found PW1 was not shaken in cross‑examination and there was no inconsistency within his own evidence[5]. Without the advantage of seeing and hearing PW1 give evidence and having reviewed the evidence myself I find no justification in going behind the magistrate’s finding on the credibility and reliability of PW1.

Ground 2

25.  The magistrate had correctly stated that the key issue at trial was one of identification[6]. He explained in detail his observations and evaluations of PW1’s evidence and was satisfied beyond a reasonable doubt that the appellant had sold drugs to PW1[7].

26.  The magistrate set out PW1’s evidence in 11 paragraphs[8] in his statement of findings (SOF). He stated that the transaction had taken place at a location at night, in the front of VS7512 which was silver in colour and at the time of the transaction the appellant was not wearing a face mask. Absent from those paragraphs was the specific circumstances of PW1’s observation of the appellant. A transcript of PW1’s evidence was therefore called.

27.  Having been provided with a full transcript of PW1’s evidence as well as the closing submissions by the defence counsel at trial I have had the opportunity of carefully reviewing the evidence of PW1. I have considered these and the reasons which the magistrate gave for convicting the appellant.

28.  This hearing being an appeal from a magistrate, it was a rehearing before this court based on the material before the magistrate. This court was required to arrive at its own decision.

29.  The transcript shows that PW1 gave a detailed description as to the appellant’s appearance, the state of light, the time line of observation of the appellant, the distance when the observation was made and the language used in communication on 25 November 2020.

30.  PW1’s evidence was that at 2338 hours the user of Greenmonke628 told PW1 that he had arrived and sent him a picture showing PW1 he was at the bus stop opposite Tai Wo Hau Community Centre (“the arrival photo”). At 2340 hours, PW1 approached the passenger side of VS7512 and showed the appellant the arrival photo just sent to him by Greenmonke628 at 2338 hours. The appellant alighted from the car and walked to the front of the car and asked PW1 “safe?”. PW1 replied “yes.”  The appellant then took the drugs out from his trousers pocket and gave PW1 the drugs. PW1 paid the appellant the money. The appellant then counted the money. After the appellant had finished counting, the appellant said to PW1 in English “if any problem, message me.”  They then fist bumped each other. PW1 left with the drugs.

31.  PW1[9] described the appellant as a foreign male, aged around 30 to 35. His height was around 1.8 to 1.85 metres, slim build, brownish‑gold hair, wearing a headscarf, not wearing a mask, with a beard, wearing a white long-sleeved top, dark shorts and wearing medical gloves. At the time of the exchange PW1 said there was sufficient lighting from street lights at the scene for him to see the appellant who was around 1 metre away from PW1 and he could also clearly see the licence plate VS7512 which the appellant had alighted from.

32.  In cross‑examination PW1 agreed that he had never seen the appellant before the operation on 25 November 2020. PW1 was shown photos MFI 1-3 which showed the road under the footbridge was dark and with no visible street lamp. PW1 disagreed that the location was dark at the time, he said there were yellow street lights at the time and denied that he could not have seen any person in the car[10]. During re-examination PW1 said the car was parked under the bridge but he could not be sure of the exact location and there were street lights on the other side of the bridge[11]. He said the street lights at the material time were yellow in colour instead of white.[12]

33.  PW2 who saw VS7512 on 15 December 2020 stated that its colour was blue. His evidence in relation to the colour of VS7512 was inconsistent to PW1’s. In cross‑examination of PW1 it was put to him that the registration and the photos taken by the police of VS7512 on 15 December 2020 proved the colour was blue[13]. PW1 agreed the photo showed VS7512 was blue but stated he saw and believed that the colour was silver. He said his belief may have been so because the street lights on 25 November 2020 were yellow[14]. The magistrate accepted PW1’s evidence that given the colour of the lighting it was understandable and reasonable why he thought the colour was silver[15].

34.  The correctness of PW1’s identification of the appellant was supported by the appellant’s admission in his VRI that he was the sole driver of VS7512 and he was in VS7512 and around Kwai Chung area at the material time and day.

35.  I was satisfied, as was the magistrate, that PW1’s evidence was reliable and of good quality to prove that the appellant sold the drugs to PW1 and the appellant’s admissions supported PW1’s identification of him.

Ground 3

36.  The prosecution case relied solely on the credibility and reliability of PW1’s evidence which the magistrate accepted. There was no requirement for independent evidence to prove the prosecution case.

Ground 4

37.  The “witch hunt” the appellant was referring to was a repeat of his trial counsel Mr Wong’s submission at trial that the police already had information about the appellant and wanted to “get him.”  It was put in cross‑examination to PW1 that the reason why PW1 pointed the appellant out was because the police already had information on what the appellant looked like. PW1 replied that he did not know whether the police had information on the appellant before. PW1 also denied knowing that prior to the appellant’s arrest the police had raided the appellant’s home on at least three separate occasions and nothing illegal or illicit was found[16]. The magistrate had accepted PW1’s evidence. It followed the magistrate rejected the defence case that this was a “witch hunt” or that the police were out to “get him” and or that the police framed the appellant.

Conclusion

38.  Counsel representing the appellant at the trial had made detailed closing submissions regarding the issue of identification and the credibility of PW1 bringing to his attention the weaknesses in the prosecution case. The magistrate was aware of these and dealt with them in his SOF. The appellant has repeated those submissions in his grounds of appeal.

39.  I have reviewed the evidence before the magistrate given by PW1 and the VRI’s. On the evidence before the magistrate, the conviction of the appellant was neither unsafe or unsatisfactory. I found no merit in the grounds of appeal or the complaints made by the appellant. For the above reasons the appeal against conviction was dismissed.