R. v. LEE CHEE WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 300 of 1997

(On Appeal from WSC No. 10214 of 1996)

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J U D G M E N T

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1. The applicant, LEE Chee-wah, was charged with the 1st charge of trafficking in a dangerous drugs, the 2nd charge of possession of dangerous drugs and the 3rd charge of resisting a police officer. At the trial before the magistrate, he pleaded guilty to the 2nd charge of possession of dangerous drugs. He was convicted after trial on the 1st charge of trafficking in a dangerous drugs and the 3rd charge of resisting a police officer.

2. The prosecution's case against the applicant was extremely simple and straightforward. On 15 June 1996, shortly after 11.30 in the evening, the applicant was stopped by two plain clothed officers at the dairy farm staff quarters in Pok Fu Lam Village. The applicant was searched and according to the prosecution witnesses, a total of 43 phials containing dangerous drugs were found inside a Wellcome supermarket bag, which was being carried by the applicant under his right armpit.

3. When the applicant was arrested, according to the prosecution witnesses, he tried to push away the arresting officer with both his hands. There was a subsequent struggle before the applicant was finally subdued with the help of another officer, who arrived in response to the request for assistance. After the applicant was arrested and subdued, he was then taken to the Aberdeen Police Station.

4. A post-record of the arrest and the caution was made, and he was further interviewed and the allegation was that the applicant made further admissions in the form of a cautioned statement, which was admitted as evidence, after a voir dire was held to determine the voluntariness of such statement.

5. The 43 phials of dangerous drugs, of course, formed the subject matter of the 'A' charge of trafficking in a dangerous drugs, and the attempt to push the officers away formed the subject matter of the resisting charge. It was not in dispute that at all material time, the three officers involved in the arrest and the struggle with the applicant were under the leadership of a sergeant, 3364. His name is LO Kwok-kuen, and he was referred to in the course of the trial as Sergeant Kuen.

6. It was the defence's suggestion that the applicant was, in fact, at the material time, an informant working for Sergeant Kuen. As the applicant was unable to provide useful information to Sergeant Kuen, having received some information money from him, the sergeant had on an earlier occasion threatened to frame up the applicant, and that took place about one month before the incident in question. The defence's allegation was that the incident on 15 June 1996 was, in fact, an attempt on the part of the sergeant to carry out such a threat.

7. In particular, it was suggested that after the applicant was intercepted by the party of police officers, including the sergeant in question, it was Sergeant Kuen who asked the other arresting officers to search for the dangerous drugs in the vicinity. An officer subsequently returned with a bag of dangerous drugs and alleged that it belonged to the applicant. That was how the applicant presented his defence in order to challenge the allegation raised against him by the police officers.

8. All the police officers denied that the sergeant was, in fact, present at the scene of the crime as such, that was, at the initial stage. They said the sergeant only arrived at the staircase where the applicant had fallen and hence injured after the finding of the dangerous drugs in question and after his arrest.

9. Because of the allegation levied against this particular sergeant, the sergeant was tendered by the prosecution for cross-examination by the defence at the trial. This sergeant admitted that the applicant had been his informant, and that he had given him a total of $860 for expenses or informant's fee in the past. But the applicant was unable to come up with any useful information. Sergeant Kuen denied that he had ever threatened to frame up the applicant. He also denied having done it about a month before the arrest of the applicant, because the applicant was unable to provide information about drug trafficking activities in the Pok Fu Lam area within a period of two days.

10. In the course of the cross-examination of this particular sergeant, the defence produced a tape recording, Exhibit D1, which contained two taped telephone conversations that the applicant had with the sergeant on 17 May 1996.

11. The applicant said, because of the earlier threat by Sergeant Kuen, he found it necessary to report the matter to the ICAC, and that was done two days after he received such threat from the sergeant. The suggestion was that the threat by the sergeant was made on 15 May 1996. In fact, so far as the taping of the telephone conversations between the applicant and the sergeant was concerned, it was arranged by some ICAC officers at the Operation Department of the ICAC.

12. The sergeant did not dispute that there were the telephone conversations he had with the applicant. The gist of his evidence or explanation was that as he found the applicant unable to provide useful information, he just did not want the applicant to work for him anymore as an informant.

13. It was true, as Miss TSE, on behalf of the Crown, observed that the general tenor of the telephone conversations between Sergeant Kuen and the applicant, which had been taped, was that the sergeant was suggesting that the applicant needed not work for him anymore. I had myself looked at the transcript of the telephone conversations. I had looked at the original Chinese transcripts as well as their certified English translation. The applicant, in the course of such telephone conversations, clearly appeared to be worried at the suggestion of the sergeant. It was not readily known the cause of such worry. And from the sergeant's point of view, what he said to the applicant could not have given rise to any such worry.

14. Because, as demonstrated by the transcripts in question, in the course of the conversations, the applicant would be saying words to the effect that, 'Then this is you put me into trouble, and that is you put me into trouble'. He further said, 'You are not to act like this. You now tell me not to do it, so what is it, Big Brother?'

15. Looking at the entire conversation, while Sergeant Kuen clearly was telling the applicant that he needed not work for him anymore, there appeared to me, to some extent, a real threat against the applicant. In particular, there was a certain part of the conversation which was highly suspicious. The applicant said, "That is, you want me to go on the way, or what?" And in his original Chinese version [speaks in Chinese]. And then, Sergeant Kuen would say, "You have said you would go on the way. You have said you would lift two or three hundred straws and carry it on the way. Would you do it now or won't you do it now?" And in his original Chinese version [speaks in Chinese]. The applicant suggested that to 'go onto the way', meant that the sergeant asked the applicant to get some white powder and then to be arrested by him. And if the applicant would not get white powder, the sergeant would provide some for him. The applicant also said that the sergeant had made such a threat to him two days before the telephone conversations in question.

16. In the course of his cross-examination, Sergeant Kuen was specifically questioned about such aspect. His response could only be described as somewhat unusual and highly unconvincing. He seemed to suggest that he did not, in fact, understand what was meant by saying 'going on the way'. His explanation was that prior to the two telephone conversations in question, he had been constantly disturbed at night by the applicant when he was sleeping and therefore was muddle-headed. The sergeant said, at the time of talking to the applicant, he was simply repeating words that the applicant had spoken to him on earlier occasions without understanding the meaning of such words.

17. In his statement of findings, the learned magistrate said the sergeant was somewhat embarrassed about his impolite tone towards the applicant in the tape, and he considered the sergeant had been less than candid about his interpretation of the various passages in the telephone conversations. The emphasis, of course, should not on the politeness or otherwise of the conversation. Admittedly, in the course of the conversation, both the applicant and the sergeant did use substantial foul language. But as I said, the emphasis was not on such matters. The word 'candid' perhaps was, in my view, far too mild a term to describe the nature of the sergeant's evidence.

18. Looking at the telephone conversations in question, the sergeant's suggestion that he, in fact, did not understand what he himself was talking about, in my view, was highly suspicious to say the least, and was, in my view, quite unacceptable to any reasonable tribunal.

19. While there was no independent evidence to show what the term 'go on the way' meant, the denial by the sergeant and his evidence that he did not understand what he was talking about, made such a term highly suspicious. And the fact that, in my view, the sergeant was clearly trying to hide something, could to some extent support or lend weight to the applicant's contention on this aspect.

20. In the course of the telephone conversation, the applicant also said - that's at entry 45C - "The other day you said, 'I know what kind of person you are. Once you have said it, you will have to do it." In his original Chinese [speaks in Chinese].

21. Bearing in mind the applicant saw the need to report the matter to the ICAC and the unusual nature, to say the least, of the telephone conversations that the applicant had with Sergeant Kuen, I found the case highly suspicious.

22. I accept that the applicant could have relied on the earlier dealings he had with the sergeant to cover up his criminal act. That was clearly a possibility that one could not exclude. But in our system of the administration of justice, a defendant could only be properly convicted if the evidence presented by the prosecution could give rise to no reasonable doubt or no lurking doubt.

23. In my view, the behaviour of the sergeant did give rise to such a suspicion. Unfortunately, the learned magistrate had not attempted to resolve such matter, but simply said he found the sergeant had been less than candid, and he then suggested that the applicant's evidence was absurd and without foundation.

24. Looking at the entire background of the case and the dealing between Sergeant Kuen and the applicant, and bearing in mind also that the applicant was arrested by a team of officers in the command of Sergeant Kuen, there was in my mind just a lurking doubt about the veracity or otherwise of the allegation against the applicant by the team of arresting police officers.

25. That being the case, I must give the benefit of such lurking doubt in favour of the applicant. The appeal against conviction is, therefore, granted. The conviction in respect of the 1st and the 3rd charges are quashed and the sentences set aside.