HKSAR v. CHAN CHI WANG

HCMA623/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.623 OF 2002

(ON APPEAL FROM WSC 657 OF 2002)

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J U D G M E N T

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1) The appellant was convicted of the offence of trafficking in dangerous drugs on 30 May 2002 by Deputy Magistrate Thomas Chan sitting at Western Magistracy. He now appeals against his conviction.

2) At the trial, two police officers gave evidence that on the day in question, they witnessed the appellant sell a packet of what subsequently turned out to be dangerous drugs to the 2nd defendant and the appellant received $200 from the 2nd defendant for the packet. The appellant and the 2nd defendant both gave evidence on behalf of the appellant.

3) At the end of the trial, the magistrate adjourned for one day to consider his verdict and on the following day, he returned his verdict. He also gave some oral reasons in court. The findings that he made were that he found that the two police officers were honest and reliable witnesses, and he was able to accept their evidence. He also found that the appellant was not an honest witness and he refused to accept the appellant's evidence. He also found that the defence witness was not an honest witness and so he did not accept that witness' evidence.

Grounds of appeal

4) The appellant advanced four grounds of appeal, the first of which was that the magistrate did not assess the evidence of the two prosecution witnesses properly or at all. It was alleged that the magistrate did not explain why the matters raised in the defence submissions, either individually or collectively, did not create doubts in the prosecution's case. The matters relied upon by the defence were the following :

(a) A site-visit having been made, the magistrate should have found as a fact that about two metres from the newspaper stall where the appellant was allegedly standing to wait for the arrival of the 2nd defendant would have taken him beyond the pavement and onto the road surface.

(b) At 7 a.m., there were few people on the road, so the appellant should have seen the two police officers who were standing a short distance away in observation of the appellant.

(c) After the appellant sold the packet of drugs to the 2nd defendant, why were they not arrested together and why were they allowed to leave and go their separate ways before being individually arrested by the two police officers?

(d) No dangerous drugs were found on the person of the appellant and yet it was said that the appellant made a verbal confession to the arresting officer at the scene of the arrest.

(e) The 2nd defendant was quite old and had difficulties in walking. Why did the appellant have to wait for him for over two minutes as he walked down the whole length of the steep road to get to where the appellant was standing on the road at Queen's Road West?

(f) Why were the dangerous drugs which were subsequently found on the 2nd defendant never shown to the appellant until the trial began?

(g) PW1 and PW2 gave conflicting evidence about whether the dangerous drugs seized by the police on the person of the 2nd defendant were ever shown to the police officer who arrested the appellant.

5) The second ground was that the magistrate relied too much on the demeanour of the witnesses to find them to be honest and reliable without bearing in mind that their demeanour could be deceptive and had to be approached with care.

6) The third ground of appeal was that in finding that the appellant was not under any drugs withdrawal symptoms when he gave the record of interview, the magistrate failed to consider sufficiently or at all that the appellant was a drug addict for years and that he had not taken his daily dosage of methadone at any time before his arrest.

7) The fourth ground of appeal was that the magistrate wrongly speculated that when the 2nd defendant gave evidence as a defence witness, he was under the pressure of the appellant. The magistrate is alleged to have overlooked the fact that the address and telephone number of the witness was supplied to the defence by the prosecution.

8) In reply to these grounds, counsel for the respondent submitted that these matters were all raised, mentioned and emphasized in the final submission of the defence solicitor who was the same solicitor as the solicitor now appearing on the appeal. Counsel, therefore, submitted that all these matters would have been considered by the magistrate before he returned his verdict.

9) In relation to Ground 4, counsel submitted that the witness failed to turn up in court in answer to the witness' summons and the appellant had to arrange for the witness to attend.

Determination of the appeal

10) Under our criminal justice system, the prosecution prefers a charge against a defendant. The prosecution then has to try and prove beyond a reasonable doubt that the defendant is guilty of that charge. The prosecution endeavours to do that by adducing evidence before a trial magistrate or a trial judge sitting with or without a jury. The trial magistrate or trial judge sitting without a jury is both judge and jury. He listens to the evidence and he observes the manner in which that evidence is given by the prosecution witnesses. He then decides whether he accepts the evidence and whether the evidence is sufficient for the prosecution to discharge its burden beyond a reasonable doubt. An appellate court does not have the opportunity of listening to the evidence and observing the manner it was given and therefore should be slow to reverse any findings of fact by a trial court.

11) The Court of Appeal in The Queen v. Sheik Abdul Rahman Bux, CACC No.756 of 1981, cited with approval what was said by Blair-Kerr J in The Queen v. R.E. Low [1961] HKLR 13, at page 82, when he said :

"... But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable."

In The Queen v. Hui Kee Fung, HCMA No.196 of 1994, Keith J said, at page 7 :

"... appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist."

12) In the instant case, the magistrate in his Statement of Findings said that he found that the oral admission made by the appellant at the scene of the arrest and the record of interview were both voluntarily given. The magistrate then said that he had considered in detail the evidence given by the two prosecution witnesses and found their evidence to be clear and firm. He then found that the two witnesses were honest and reliable witnesses and he accepted their evidence. The magistrate mentioned that under cross-examination, they agreed that they did not show the appellant the dangerous drugs seized. The magistrate then said that he found that the last mentioned fact did not in any way affect his acceptance of the two witnesses as honest and reliable witnesses.

13) The magistrate then went through the appellant's evidence on the circumstances under which he gave his cautioned statement and found that if indeed at the time he was suffering from withdrawal symptoms, the few sentences he wrote in the statement would not have been so tidily written. The magistrate also did not accept as the reason why he did not complain to the authorities about the police officers framing him that the arresting officer may play tricks on him. The magistrate then found that the appellant was not an honest witness and refused to accept his evidence. The magistrate then summarized the evidence of the defence witness and concluded that he was not an honest witness.

14) The magistrate then found that the arresting officer correctly recorded the answers given by the appellant during the taking of the cautioned statement and that the answers given by the appellant were true. Also, that at the time of the taking of the statement, the appellant was not suffering from any withdrawal symptoms. The magistrate also found that at the scene of the arrest, the appellant in answer to the caution, voluntarily made a verbal admission. Finally, the magistrate found that the two police officers did clearly see the appellant receive $200 from the 2nd defendant, then supplied the dangerous drugs in question to him. The arresting officer then found the money in the appellant's right trousers pocket, and the second officer found the dangerous drugs in the vest worn by the 2nd defendant. The magistrate then found that the appellant was trafficking in dangerous drugs.

15) I have gone through the transcript of the evidence of the prosecution witnesses and that of the appellant's witness, and I cannot say that, having considered that evidence and the grounds of appeal advanced, I find that there is any doubt or lurking doubt about the safety of the conviction. The appeal is therefore dismissed.