THE QUEEN v. WONG LAM KIN

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J U D G N E N T

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Penlington, J.A. delivered the judgment of the Court.

1. This is an application for leave to appeal by Wong Lam Kin against his conviction by His Honour Judge Baily in the District Court on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The amount of drugs involved was 59.74 grammes of a mixture containing 3.93 grammes of salts of esters of morphine i.e. heroin.

2. The evidence for the Crown war, that at 1410 hours on the 26th January 1988 two constables, PC10916 and PC272 were on routine patrol in the Tung Tau Estate area when they saw the applicant at the staircase of he 2nd floor of Block 17. The constables stopped the applicant and searched him. Constable 10916 said that he found a white plastic bag inside the applicant's underpants and inside that bag there were 11 packets of white powder. The applicant was then taken back to the Wong Tai Sin Police Station and it was found that one of the packets contained in its turn 10 smaller packets. There, was then a total of 20 packets of heroin.

3. At the conclusion of the constable's evidence Mr. Midgley, who appeared for the applicant, at the trial, applied for an adjournment on the basis that a complaint had been made by the applicant to CAPO and he was uncertain as to the line of cross-examination that he should pursue until the results of the CAPO investigation were available. This application was opposed and was refused. Cross-examination then too place and the constable agreed that the applicant was known to him before the incident on the 26th January. However he denied the suggestion that the applicant had been asked to be an informer before that date. In fact that question of being an informer had only occurred on a subsequent occasion in February. Constable 272 gave supporting evidence along die same lines but he denied that he had known the applicant prior to January 1988.

4. The thrust of the defence to this matter was that the police constables had fabricated the evidence against the applicant because he had agreed to be an informer for them but had net come up with any information. We adjourned the matter after the first hearing to obtainthe results of the CAPO investigation into the. allegation that the police officers had raided the applicant's flat in Autust 1988 and that a black notebook containing one of the police officer's pager number had been been seized from the flat in the absence of the applicant.

5. The investigation has taken place and it appears that there is no evidence to suggoat that when the raid did take place, which it did, that this notebook was in fact seized. Nevertheless clearly it would have been preferable if the investigation had been concluded and the results Were known prior to the trial. What also concerns us is that in the judge's Reasons for Verdict he appears to have confused some of the evidence and his findings on certain essential matters arc very brief. In particular there is a finding that it was common ground that he police officers in this case were known to the defendant, as he was to them, prior to the math January 1988. While this was true of one constable it certainly was not true of Constable 272 who denied that he knew the applicant prior to that date.

6. There is also a finding that the applicant gave an elaborate account "supported by his wife" of the police asking him to be an informer. In fact the wire had given no such support.

7. In view of the decision we have come to in this matter we feel we should not go into the evidence in any detail. There was also at allegation made by the applicant: before us that one of the police officers had been spoken to before he gave evidence by another constabl who had already given evidence. Again we feel we need not go into that matter.

8. We are left by she Reasons for Verdict with a feeling of unease about this matter. We have decided to quash the conviction and order that this matter be retried.