HKSAR v. CHU PUI LAM

HCMA281/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 281 OF 1998

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J U D G M E N T

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1. The Appellant was convicted together with another defendant of the offence of trafficking in dangerous drugs. They were convicted on 20th February 1998 by Mr Anthony Yuen and each was sentenced to 18 months' imprisonment.

2. The Appellant now appeals against the conviction and Mr Jeffrey Fenton appearing for him has argued three grounds of appeal. I have considered very carefully the grounds of appeal advanced by Counsel and I have also studied very carefully the evidence adduced in this trial which was heard by the Magistrate over a number of days. This case has caused me considerable anxiety and concern if only because the charge is a very serious charge of trafficking dangerous drugs.

3. The background to the case is that the police had decided to have what Mr Fenton described as a sting operation. They obviously must have had information that there were drugs trafficking activities in the vicinity of Block 3 of Kwai Chung Estate in the New Territories. They decided to have the operation so that a police officer would pose as a drug addict and would pretend to be a buyer of drugs thereby enabling the police to arrest the traffickers who sell drugs in that area. They held a pre-operation conference at which officers involved in the operation would be briefed on what each officer's duties during the operation would be. PW1, PC14456, was to pose as the drug addict and the rest of the officers would be at an observation lookout close by to observe the activities and to make the necessary arrest.

4. PW1 was supplied with fourteen $100 notes, the serial numbers of which he made a note of. Then at about 2:05 pm on 3rd June 1997, he went to a spot outside a restaurant at Block 3 of Kwai Chung Estate by himself. Later on, about 3 pm, he arrived at another restaurant at Block 13 of the same estate. At about 3:05 pm, he was approached by the Appellant. The Appellant approached PW1 and whispered to him "get stuff". The officer said "yes" whereupon the Appellant asked him big or small, the officer said small. The Appellant then asked the officer to follow him and took him to a table outside a cafe in the vicinity. There was another male seated at that table who was identified as the 2nd defendant in the trial. The Appellant asked the officer to sit at the table which the officer did, the Appellant then asked the 2nd defendant to go and take out a small one. The 2nd defendant then walked towards the corridor of Block 13 of the Estate and the Appellant said to the officer $100. The officer then took out one $100 note from the 14 that he had been given by his superior officers and handed it to the Appellant. After receiving the $100 note the Appellant said to the officer "Next time you want to get stuff, look for me, understand?" The officer then nodded. About one minute later the 2nd defendant returned to the table and handed the officer a packet of suspected white powder. After the officer received the packet, he then used his right hand and put it into the right front pocket of his jeans. That was the pre-arranged signal that he had just completed a successful drug buying transaction. The signal was meant to indicate to the officers in the observation team nearby that the transaction was successful and completed so that those officers can emerge from their hiding place to arrest the trafficker or traffickers.

5. PW1 left the scene, walked up to a nearby street and took a taxi back to the police station. He arrived at the police station at 3:25 pm and then handed the suspected packet of dangerous drugs to PW2, Sergeant 11254. The observation team at the scene comprising, inter alia, PW4 and PW6 emerged from the hiding place and went up to the table where the Appellant and the 2nd defendant were still seated.

6. The first surprising factor in the evidence is that according to the evidence of PW4, these officers only emerged from the hiding place after a lapse of a few minutes. These officers had been hiding inside a private car which was parked in the vicinity of the scene of the trafficking. PW4 gave evidence that he and the other officers approached the Appellant and the 2nd defendant and revealed their identities to the two men. He said that he then searched them for the reason that he suspected that they were in possession of suspected dangerous drugs. However, he said that after searching them, the police party found no dangerous drugs on them. PW6, DPC 23894, then copied down in his notebook the particulars of the two men. Then instead of arresting those two men for allegedly trafficking dangerous drugs, the police party released them. This is really the event which Mr Fenton has made many comments on and which I must say, speaking for myself, I find rather strange.

7. Mr Leung, appearing for the prosecution, said that that was unusual. The officers were naturally asked why they allowed those two men to be released instead of arresting them, and the reason which was given in court was that they had sought the approval from the Department of Justice that they were entitled not to make the immediate arrest. PW4 was asked whether at that time he was definitely sure that the drugs transaction had been completed between those two suspects and PW1 and he said that he believed that that was so.

8. Also surprising was the fact that during the search of the Appellant and the 2nd defendant, the police officers, even though finding banknotes in the possession of those two men, never checked to see whether any of those banknotes was one or more of the marked money which PW1 had been given and one of which, according to PW1, he had given to the traffickers.

9. PW1 said that throughout the operation he did not even know where the observation team was hiding; that evidence is, to say the least, rather surprising because if he did not know where the observation team was hiding, how was he to position himself so that the observation team would be able to see his pre-arranged signal. At any rate, the police officers were asked why they did not check to see if the banknote which PW1 handed to the Appellant was still in the Appellant's possession or that of the 2nd defendant, the answers which the police witnesses gave were again rather surprising and were in contrast to what PW4 had said that he had searched those two men because he suspected that they were in possession of dangerous drugs. The gist of the answer given was that the reason why they did not make a note of the banknotes found on the two men and did not attempt to find if the banknote handed to them by PW1 was still on them was because they did not wish to arouse the suspicion of those two men. PW4 said that he wanted the accosting of those two men to be a perfectly normal stop and search operation without anybody's suspicion being aroused. That was the reason why no detailed investigations were made into the money found on the two men.

10. Despite the fact that they had witnessed a drugs trafficking transaction involving those two men and PW1, just because they found no further dangerous drugs on those two men, the police party released them. There were other men sitting in that cafe but none of the other people were searched or questioned. None of the police officers went back to the corridor in Block 13, where the 2nd defendant had gone to take the packet of drugs, to search that area to see whether there were in fact more drugs stored.

11. All the actions of the police party that day seemed to have been intended to defeat the purpose of the sting operation. As a result, the two drugs traffickers were released and there was no evidence presented to the Magistrate about how and when the Appellant was arrested or re-arrested by the police. There was evidence that the 2nd defendant was arrested or re-arrested on 23rd August by another police officer. After the arrest of these two men, identification parades were held and the police officers concerned identified those two men as the two men involved in the incident on 3rd June 1997. And that isn't the end of the story because at the police station, when PW2 received the packet of drugs from PW1, he in turn handed it over to PW3, who was a station sergeant and the duty officer. On the form POL 69A, which was part of the plastic envelope into which the suspected drugs were placed and in which the drugs were conveyed to the Government Chemist for analysis, were the endorsements that the drugs had been seized by Detective Sergeant 11254, who was PW2. PW2 in evidence said that he was the seizing officer. Clearly he was not.

12. In the form, under the column "Where Seized", was just the description, "Kwai Shing area". There is no mention of the exact location where PW1 said he was given the packet of drugs by the two men. The date and time of seizure as described in the form is "3 June 1997, 15.25 hours". The evidence of PW1 was that it was five past three, or shortly after then, that he was given that packet of drugs. Mr Fenton complains about the mis-description on the form which I have just described.

13. And he also complains about the fact that the learned Magistrate never addressed his mind to those difficulties and the difficulties which I have mentioned about why the two men were not immediately arrested by the observation team and why the two men were not subjected to more inquiries about the banknotes found in their possession. It may well be that the learned Magistrate accepted their explanation that the reason for the non-arrest was because of the advice that the police had received from the Department of Justice.

14. I should mention that that was the evidence given by PW4 but there is no other independent evidence of whether in fact the police had sought advice from the Department of Justice. It may also be that the learned Magistrate took the view that the mis-descriptions on the form POL 69A were innocent mistakes on the part of the police officers concerned. The point is these were very important matters which the learned Magistrate should have referred to in either his oral reasons or in his reasons for verdict.

15. That compounds the problem for the prosecution because even if the learned Magistrate had referred to those difficulties, I, myself, would have found a great lurking doubt in the evidence adduced by the prosecution. I find it extremely difficult to understand why all the details of the "sting operation" were gone into and when a successful transaction involving selling of drugs was entered into, the suspects concerned were not immediately arrested by the police. In the evidence that PW1 and PW4 gave to the court, they were very scanty with details surrounding that operation.

16. I have mentioned that PW1 said that he did not even know where the observation team was. Even though PW1 had been on previous similar operations with the other officers, he said he did not pay attention to what vehicles were parked nearby or whether there were any persons inside the vehicles. PW4, similarly, was not forthcoming with details. Another surprising matter is that PW4 said that they actually waited a few minutes before emerging from their hiding place to accost those two traffickers.

17. The reason which was given about why no enquiries were made of the two men on the particulars of the banknotes found on them contradicts the earlier evidence by PW4 that they were searching those two men because they were suspected to be in possession of dangerous drugs. PW4 admitted that because of the signal which was given by PW1, the police party were in possession of evidence which would have afforded them grounds for arresting those two men.

18. All in all, because of all these difficulties which have driven me to the conclusion that there must be a lurking doubt about the correctness of this conviction, the appeal has to be allowed. Mr Fenton also made as his first ground, the complaint that the learned Magistrate had wrongly indicated to the prosecution that perhaps the prosecution need not adduce in evidence the cautioned statements made by the two defendants. Mr Fenton makes the point that that indication shows that the Magistrate must have, by that stage, quite wrongly decided to believe the evidence of the prosecution witnesses without hearing the rest of the evidence.

19. Mr Leung submits that is not necessarily so because the Magistrate could well have had, at that stage, an open mind. Whatever the position, I need not decide on that ground of appeal because I have already disposed of the appeal for the reasons mentioned earlier on. I will be slow to appear to lay down any rules as regards how Magistrates should conduct trials in their court, because we all know how much pressure Magistrates have to work under and how many cases they have to try each day.

20. Appeal allowed. Conviction quashed. Application for re-trial refused.