R. v. CHUNG TAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 408 OF 1995

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of trafficking in a dangerous drug. He was sentenced to three years imprisonment.

2. The prosecution evidence was that a group of police officers set up an obseration post outside Block 33, Pillar Point Vietnamese Refugee Centre. The appellant was observed by one of the officers PW1 to have handed to another person something and in returned he was given some cash which he put into his right trousers pocket. PW1 then informed other police officers in the team. The appellant was intercepted by PW2 while the other man was intercepted by PW4. From the person of the appellant $50 was found in his right trousers pocket. While PW4 found on the other person a straw containing a substance which was later found to be dangerous drugs. The appellant later at an interview in the police station made a statement in which he admitted he bought the drug from someone in Shumshuipo and as he could not consume all of it, he sold the straw of dangerous drug to the other person.

3. The appellant's evidence was that he was ordered by police officers out of a restaurant where he was then eating and outside the restaurant, he was beaten and told to admit. Later he was told to give a statement. He did not know what was going on. He denied he sold dangerous drugs.

4. During the course of the trial, PW1 described the clothings he saw the appellant and the other person were wearing when the transaction took place. He also said he saw PW2 go after the appellant and PW4 go after the other person. When PW2 described the clothings of the person he arrested he mentioned the clothings worn by the other person. He then refreshed his memory from the statement he made after the arrest and corrected himself. In any case, he identified the appellant as the person he arrested and searched and on whom he found the money. PW4 in his evidence described accurately the clothings which the appellant and the other person were wearing when he and PW2 came out from their positions to intercept them.

5. The learned magistrate adopted the alternative procedure in determining the special issue of admissibility of the appellant's statement. He concluded after hearing the prosecution evidence and the evidence of the appellant that the statement was voluntarily made and admitted the statement.

6. The learned magistrate accepted the evidence of the police officers. In dealing with the evidence of PW2 he said "Although PW2 had exhausted his memory with regard to the clothing the defendant was wearing at the arrest and I had allowed him to refresh his memory by looking at his witness statement made when the events were still fresh in his memory, I found this unsurprising as the events occurred seven months earlier. This did not impugn his credibility in any material way." He also relied on the admissions in the appellant's statement. He rejected the evidence of the appellant and convicted the appellant.

7. The appellant appealed against conviction and one of the grounds of appeal is that the learned magistrate should not have allowed PW2 to refresh his memory from his statement to contradict evidence he had given as to the description of the man he arrested to tie with the description given by PW1.

8. It was submitted that the ground work for refreshing memory had not been made and the prosecution should have asked the witness to refresh from his note book instead.

9. Complaint was also made of the magistrate's record that there was no record of the appellant being explained of the nature of "alternative procedure" and especially where the learned magistrate recorded at the end of the prosecution case: "Defendant elects not to testify on special issue." It was submitted on behalf of the appellant that the record showed the learned magistrate admitted the statement because the appellant had not elected to give evidence.

10. The record clearly showed that the appellant was able to make out his grounds of objection to the admissibility of his statement and he gave evidence in support of his objection. It also clearly showed that the learned magistrate had considered all aspects of his objection and evidence and the evidence of the prosecution before he came to his conclusion on the special issue. The fact that the learned magistrate might have inadvertently added on the record that the appellant had elected not to give evidence does not in any way suggest that he relied on it and his conclusion which was based on the evidence before him was affected by it. The record even though not as satisfactory as it should be does not show that the proper procedure for determining the special issue had not been complied with.

11. On the question of refreshing memory, the record showed that the statement was made while the events were fresh in PW2's memory. The learned magistrate had resolved the conflict between PW2's evidence given before and after refreshing his memory.

12. There was ample evidence to support the learned magistrate's findings and conclusion that the appellant had sold the straw containing dangerous drug to the other person. His findings cannot be faulted. The appeal against conviction is dismissed.

13. The appellant then appealed against sentence.

14. The learned magistrate in his reasons for sentence said there were aggravating factors such as that Pillar Point Vietnamese Refugee Centre was a dangerous drugs "black spot" and drug traffickers in the Centre found easy prey among the refugees and a deterrent sentence was called for. He found no mitigating factors. After taking into account the appellant's age of 50 and his ill health and record of 8 previous convictions though not related to drugs, the learned magistrate adopted a starting point of 34 months imprisonment and adjusted it upwards to 36 months because of the aggravating factors.

15. It was submitted for the appellant that 34 months as the starting point was too high having regard to the case of Lau Tak Ming and the learned magistrate should not based on his own views to conclude that Pillar Point was a dangerous drugs "black spot".

16. Mr. Chapmen for the Crown also pointed out that the starting point was too high and the approach to aggravating factors was inappropriate. He did not oppose the appeal against sentence.

17. The amount of drug involved was 0.14 grams of a mixture containing 0.11 grams of salts of esters of morphine. For such a small amount of narcotic, the sentence falls within the bracket of 2 - 5 years according to the guidelines in Lau Tak Ming and it should be at the lowest end of this range. There was no evidence to show that Pillar Point Vietnamese Refugee Centre was a dangerous drugs "black spot" nor any basis for the learned magistrate to take judicial notice of it. The starting point of 34 months would be too high. In the circumstances, the appeal against sentence is allowed and the sentence reduced to one of 2 years imprisonment.