HKSAR v. TSANG KING PING

HCMA 1020/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1020 OF 2002

(ON APPEAL FROM TWCC 1151/2002)

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J U D G M E N T

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1. The Appellant was found guilty after trial of one count of "Trafficking in a Dangerous Drug". The dangerous drug was a single straw packet of heroin; the heroin hyrochloride content was 0.06 grammes. The Appellant was sentenced to 2 years' imprisonment and that sentence was ordered to run concurrently with 5 months of a suspended sentence, imposed in TWCC 3369/2002. The Appellant appeals today against conviction only on the ground that his conviction was against the weight of evidence.

2. I note from the file that at an earlier appearance on this appeal, Appellant asked the Deputy High Court Judge for translation of a portion of the proceedings and indicated then that he had doubts as to the prosecution's evidence, in particular that the video tape of the transaction did not show his face, that the search relating to a marked HK$100 note did not occur and that the undercover officer did not give evidence.

3. Today the Appellant reiterated those grounds, and stated that the police were telling lies to make up evidence so that they could convict him. He said he suspected the undercover officer, who was PW1 at trial, had "mixed up" the identification and said the marked banknote, which had been a feature of the case, had not been produced to court. He also pointed out that he believed that the officer who searched him, PW3, was also a cameraman and could not have performed two duties at once. Overall, he was generally dissatisfied with the verdict.

4. The evidence, as traversed by the Magistrate, showed that the Appellant was arrested by the police during an undercover DD operation. He approached the undercover officer, PW1, who was posing as an addict and enquired if he "wanted stuff". When the decoy said "Yes", the Appellant asked for payment first and handed over a straw packet to PW1 in exchange for a marked HK$100 note.

5. In cross-examination it transpired that the decoy, in the course of the operation, had seen the Appellant a couple of days before the day of the transaction and had spoken to him, although he had not seen any dangerous drugs on any earlier occasion. A video camera was used to record the transactions that were noted during this operation; this transaction was also video-taped. The decoy signalled that a successful transaction had taken place and another officer, PW3, stopped and searched the Appellant, noting as he did so the number of the marked note which he could see in his shirt pocket.

6. The Appellant was not arrested for the offence on the day of the transaction, but was arrested two days later when the operation turned overt. On his arrest he denied the offence. He was later identified at an identification parade by the officer (PW1).

7. The Appellant, who was represented at trial, gave evidence and denied any dealings with the decoy officer at all. He agreed that on that day he had been asked by a police officer to produce his identity card, but denied that the officer searched him. He said that he had been playing at a mahjong school when a friend called and asked him to wait for him at a doorway. He had waited for about 15 minutes and it was during that time he was asked to produce his identity card.

8. The Magistrate accepted the evidence of the officers as to what had happened, and found them reliable and credible witnesses. He found that the video tape confirmed that a search had taken place albeit the quality of the video tape was poor and he noted that in cross-examination it had never been put to the searching officer (PW3) that he had not searched the Appellant.

9. Having perused the file and having considered the Magistrate's Reasons for Verdict and the matters raised by the Appellant, I am satisfied that there is nothing unsafe about this verdict.

10. The appeal is dismissed.