R. v. SHU CHEUNG HO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 412 OF 1996

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D E C I S I O N

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1. The appellant was convicted after trial of one count of trafficking and one count of possession of dangerous drugs. He was sentenced to two years and 3 month for the first count, and six months for the second count, both sentences to run concurrently. He now appeals against both conviction and sentence. Having heard counsel's submissions, I dismissed the appeal against conviction and allowed in part the appeal against sentence saying that I would reduce my reasons into writing. This I now do.

2. The Crown's case was this. In the late evening of 5th October 1994, a team of police officers were conducting an anti-dangerous drug operation and patrolling in the Kam Tin Area. They received information and went to a place called Shing Mun Sun Tsuen. According to PW1 and PW2, they saw about 30 people loitering downtown. Having obtained further instructions, PW1 and PW2 posed as drug addicts and mixed with that crowd. This crowd later joined with another crowd of about 20 odd people. They were signalled to and did move long, finally arriving at the entrance of a bridge. Then someone told them if they wanted to get something, they should have their money ready and wait for their turns one by one to go onto the bridge to get it. They should then leave at the other end of the bridge.

3. While they were waiting, the two officers saw two men coming from the other end of the bridge and arriving at the middle thereof. One of the men was a fat man. He was carrying a white plastic bag. The other one was a younger and thinner man. He was also carrying some stuff in white. The crowd then went one by one to the 2 men in the middle of the bridge and paid over money which was counted by the younger man, who then took out something from the plastic bag held by the fat man and gave it in return to the customer. The fat man was standing next to the younger man and giving directions to the people in the queue. Initially, the two officers were placed about 10 odd in the queue. After about 10 minutes, they came to the third and fourth places. While they were queuing up and waiting for their turns, PW1 and PW2 could see what happened on the bridge and what the two men were doing. When they were about third in the queue, they dashed out to the two men, PW2 chasing after the fat man and PW1 at the younger man. PW1 caught hold of the younger man who turned out to be the appellant. The fat man who made good his escape. The 2nd defendant at the trial was arrested two days later. He was said to be the fat man.

4. According to PW1, the appellant was found, upon arrest, to be holding in his left hand a plastic bag which contained cash in the sum of $12,740 and in his right hand, 6 plastic straws of dangerous drugs. PW1 revealed his police identity, arrested the appellant and cautioned him. According to the officer, the appellant replied : "I am in urgent need of money, so I committed myself in this job for only a few days. This is not done on a long term basis. I do it myself, other people are not involved. Please give me a chance."

5. When PW2 returned to the scene, PW1 told him to guard the appellant. PW1 himself went down to the river to see if there were any other exhibits or anything which had been thrown there. PW1 spent about 10 minutes doing that. He then returned. The two officers and other reinforcement then took the appellant back to the Police Station.

6. Inside the Police Station, PW1 took a cautioned statement from the appellant which included the post-record of the verbal admission at the scene, followed by questions and answers.

7. The appellant gave evidence at the trial. He said at the material time he was going to a karaoke to sing. He passed by the bridge, went on it, and while he was doing so he saw people running in both directions. At the middle of the bridge, he was grabbed from in front by PW1 and pushed to the railings by the officer. He denied he had said anything to the police officer. He was then handcuffed and searched. He was found to have only $5,000 to $6,000 in his wallet. The officer went down the bridge to search for other matters. He said that he was assaulted while he was travelling in a van on his way to the Police Station. He further alleged that the cautioned statement was written out by police officer and he was assaulted and threatened into signing the statement. He said that he subsequently went to the hospital on the 7th October to have a medical examination and treatment of his injuries. He explained that he did not go on the 6th because he was too tired after what happened on 5th October, so that he had to sleep until the night of the 6th. He had made a complaint to CAPO but did not make any statement.

8. At the end of the trial, the learned Magistrate gave "very brief reasons" for convicting the appellant. In essence, he said he believed the evidence of the prosecution witnesses and was satisfied beyond reasonable doubt that the two charges had been proved.

9. Counsel in this appeal relied on the grounds of appeal against conviction drafted by counsel who conducted the trial before the learned Magistrate. That document was drafted and filed before counsel had the opportunity of reading the learned Magistrate's Statement of Findings. In any event, counsel in this appeal argued the appeal based on those grounds.

10. The first ground appeal complained that the learned Magistrate failed to warn himself in accordance with the principles of R. v. Turnbull since the issue substantially depended on the observations of the two police officers. It is only fair to say that this ground of appeal was relied on before the learned Magistrate had prepared his Statement of Findings. The learned Magistrate did not mention anything about identification or the principle in Turnbull in his brief reasons. With respect, I think all that the learned Magistrate was doing at the end of the trial was to state his findings and record his conviction of the appellant. He did not, in my view, intend to give detailed reasons. He gave full consideration to the issue of identification and at no less than three places did he remind himself of the principles in Turnbull. The fact that he convicted the appellant but acquitted the 2nd defendant shows that he had these principles in mind when dealing with the evidence and he quite correctly set out the difference between the 2 defendants. I think these differences are justified from the evidence. PW1 had his eyes on the appellant for at least 10 minutes while he was waiting in the queue. He dashed out at the appellant and grabbed hold of him. The appellant was at all times under his observation. He was therefore the centre of focus of PW1. In paragraph 158 of his Statement of Findings, the learned Magistrate had also set out the various factors which he had considered in relation to the identification of the appellant. These included, among other things, the money found on the appellant and the drugs found in his hands. If the learned Magistrate accepted the officer's evidence with regard to the search and the discovery of the money and the drugs, these two factors also added strength to his identification. The learned Magistrate was therefore quite justified in concluding that there could be no question of mistaken identification. There is no merit in the first ground of appeal.

11. In respect of the second ground, it was submitted that the defence had called an expert witness who was a photographer. He had been to the scene. He was a surveyor by profession. He had taken various photographs at the scene at night when the circumstances were comparable to those at the time of the offences. According to this photographer, he said that the photographs which he had taken depicted accurately what was or could be seen at the time. He said that it was impossible for the police officers to have seen what they alleged to have happened on the night in question. It was alleged that the learned Magistrate had failed to properly, or at all, to give any weight to such evidence.

12. The learned Magistrate dealt with the evidence of this witness in paragraphs 152 to 154 of his Statement of findings. He also relied on one of the answers given by the photographer, namely at page 167 in which he agreed that "when first in dark environment one can't see clearly but after 10 minutes or so one can."

13. I think it is only fair to say that the evidence of the photographer suffers two handicaps. First, it is common sense that the lens of a camera does not need time to adjust to a dark environment whereas the human eyes would need some time. Second, the camera usually focuses on a particular spot or area whereas that the human eyes see a particular article in the background of the surrounding. It is therefore not surprising that the learned Magistrate applying the common sense approach, rejected the photographer's evidence that what the photograph could show was exactly the same as could be seen by the naked eye in the circumstances. In my view, the learned Magistrate was quite correct in his dealing with the evidence of the photographer. He had dealt with it and given it the weight which it deserved. He was also right to come to the conclusion which he did.

14. The third ground of appeal complained that the learned Magistrate had, without good reason, refused on two occasions to have a site visit. It was submitted that the failure to have a site visit resulted in the appellant having been unfairly prejudiced in presenting his defence.

15. At page 118 to 119 of the transcript, it appears that during the course of the trial, defence counsel applied for a site visit in the hours of darkness to see the position of things. The learned Magistrate declined the application adding that the court might review the decision in the light of evidence on the photographs and the plan which were to be adduced later. At a later stage, those photographs were produced and DW1, the photographer and surveyor, gave evidence. There was a second application for a site visit on behalf of both defendants. This the court also declined. In his Statement of Findings, the learned Magistrate dealt with this issue in paragraphs 145, 149 and 150 saying that he took the view that he would not be significantly assisted by a visit and refused the application.

16. In my view, the learned Magistrate had given good reasons for refusing to accede to the application for a site visit. He, having heard the evidence, in particular the evidence of the surveyor/photographer, and having seen the photographs and sketches, was in the best position to judge whether it was necessary to assist him in the determination of the issue of identification. He had taken into consideration that the appellant was caught red-handedly in the middle of the bridge with the money and the drugs. These pieces of evidence strengthened the identification of the officer notwithstanding that the circumstances were less than ideal. This ground cannot be sustained.

17. The fourth ground of appeal complained that the learned Magistrate was wrong to admit the cautioned statement alleged to have been given by the appellant. Counsel relied on the medical evidence given on behalf of the appellant, the evidence of the officers admitting that the appellant was never explained his rights, that certain signatures were added after the completion of the statement, that there had been mistakes with regard to the date i.e. 1994 instead of 1996 on four different occasions during the interview, the allegation that the appellant had spoken out loudly the declarations at the end of the statement and that the appellant had no contact outside until after he had given the statement.

18. A doctor was called to give evidence on behalf of the defence. The gist of his evidence was that he found some contusion on the right shoulder and the centre part of the appellant. However, in his evidence he had added that he could not say whether it resulted from assault or something else. He said that it could have been inflicted two days prior to the examination, but could also be recent, say less than 12 hours. The learned Magistrate dealt with the medical evidence in great detail. He took note that the appellant was detained during the early morning of the 6th, did not go for a medical examination, but said he had slept the whole day and only woke up at night on the 6th. However, PW1 said that in the afternoon on that day, he located the appellant downtown and had the corrections regarding the wrong year initialled by the appellant. The learned Magistrate had apparently disbelieved the appellant's version about having slept the whole of 6th October. He accepted that the corrections with regard to the date occurred during the afternoon of the 6th in downtown Yuen Long. Having satisfied himself of that, the learned Magistrate accordingly and quite correctly held that there was no explanation as to why, if the injuries were inflicted by the officers in the early hours of 6th October, the appellant did not go as soon as possible but wait until 7th October.

19. With regard to the failure on the part of the officer to inform or explain his rights to the appellant, I think the authorities are quite clear that mere failure to do so is not necessarily fatal to the admissibility of the cautioned statement which was obtained afterwards.

20. With regard to the corrections of the year and the failure of the officer to spot the mistakes on four different occasions when the statement was read back to the appellant, the officer admitted that it was an oversight on his part. Having heard the evidence and assessed it, the learned Magistrate was entitled to accept that explanation.

21. I do not agree that the officer had admitted that the appellant was denied outside contact. He said that the appellant was allowed to make a phone call after signing it. In the context of his evidence, I think all he was saying was that there was no contact with outside and the reason was that the appellant did not make any request.

22. There was sufficient evidence for the learned Magistrate to come to the conclusion that the appellant did make the verbal admission at the time of the arrest and that the cautioned statement was given by the appellant voluntarily.

23. With regard to the fifth ground of appeal, it was submitted that there are discrepancies between the evidence of PW1, PW2 and PW3 with regard to the searching of drugs at the time of the scene and the condition of the straws containing the dangerous drugs. It was argued that according to PW1, when the appellant was arrested, PW1 found him to be in possession of the straws containing dangerous drugs; however, PW2 said that when he arrived, PW1 went searching around, apparently looking for dangerous drugs under the bridge; and yet according to PW3, the straws might have been wet. It was argued that the learned Magistrate had failed to pay sufficient regard to these discrepancies.

24. In my view, there are no discrepancies. All PW1 said was that he found 6 straws containing dangerous drugs on the appellant. PW2 said that when he arrived, PW1 went searching around under the bridge. That is not an inconsistency because PW1 said that when he saw PW2, he asked the officer to guard the appellant while he himself went around searching for other exhibits. As far as PW3 is concerned, all he said in answer to a question whether the straws of drugs could be wet was that they " may be". The previous answer given by this officer was that he did not know. He was far from saying that the drugs seized were wet. In the circumstances, I do not think there is any evidence to the effect that the straws containing the drugs were in fact wet or any suggestion that they were found by PW1 under the bridge and not on the appellant.

25. As to the sixth ground of appeal, it was alleged that the learned Magistrate failed to pay sufficient attention to the admission of PW1 and PW2 that they had prepared the statement together for the purpose of consistency. In respect of this, defence counsel who conducted the trial made an affirmation exhibiting what he said was the correct notes at the time. It was produced in order to contradict what the learned Magistrate had written in his notes. Having considered the Magistrate's notes and the affirmation, I think there is a misunderstanding on what was asked by the court and counsel and what was answered by the witness on this point. This is clear from the relevant part of the evidence which I set out as follows:

"Q. Not even discuss time and location?

A. After arrest and before witness statement we discussed but when make witness statement we not discussed. We discussed details when case happened.

Q. This to achieve consistency in your evidence?

A. After witness statement finished, I looked at PW1's witness statement and saw it not completely consistent with mine.

Q. The discussion, you had it before witness statement made?

A. We simply unfolded the actual situation but not discuss what right and wrong.

Court : Defence Counsel - D2 suggest this done to achieve consistency of accounts?

A. I agree."

26. I think the learned Magistrate must have this part of the evidence in mind when he assessed their credibility. He had the opportunity of watching the officers give evidence and was entitled to come to the conclusion that their credibility was not affected by their discussion.

27. The seventh ground complained that the learned Magistrate gave no reasons for his disbelieving the appellant and his evidence, and made no findings upon the multiple inconsistencies and contradictions in the prosecution evidence. It appears that this ground was prepared without the benefit of the Statement of Findings. It is quite clear that the learned Magistrate had given good reasons for rejecting his evidence. I do not think this ground can be sustained.

28. In conclusion, I think that it is quite clear that there is no merit in any the grounds, the appeal against conviction is dismissed.

29. With regard to the appeal against sentence, all I need to say is this. What the appellant had done in this case was nothing less than publicly selling drugs to addicts. It is quite clear that the whole operation was well organised and he worked for that syndicate. It was said in mitigation as appearing from his cautioned statement that he was only there to help out at a modest fee of $3,000. Notwithstanding that, in my view, a heavy deterrent sentence is called for. The sentence of 2 years and 3 months imposed by the learned Magistrate is, in the circumstances of this case, neither wrong in principle nor manifestly excessive. After all, it is a very serious offence committed in very serious circumstances.

30. I was informed that the appellant is now serving a sentence of two years six months in connection with another drug offence. This sentence was imposed in April, approximately two months after the sentences given in this case. The appellant has a previous conviction which is not connected with drugs. He has never been sent to prison before. The prison sentences are therefore the first time he is in custody. Taking the two sentences together, it would seem that he would be facing a total of four years nine months. I have little idea about the other drug offences. However, it does appears to me on a totality principle that the total term is rather harsh to a person who goes to jail for the first time, although he does deserve a harsh sentence. In the circumstances, I would order that a part of his sentences in the present case is to run concurrently with the sentences in the other case. I would therefore allow the appeal against sentence in part and direct that of the two years and three months in the present case, one year should run concurrently with the two years and six months imposed in the other case.