THE QUEEN v. LI MOK SHING

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JUDGMENT

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Silke, J. A.:

1. Li Mok Shing was charged with an offence contrary to section 7(1) of the Dangerous Drugs Ordinance. The Particulars of which alleged that he :

"on the 1st December 1983, at Mongkok, in this Colony, had in his possession a dangerous drug, namely 904.24 grammes of a mixture containing 273,83 grammes of salts of esters of morphine for the purposes of unlawful trafficking therein."

2. He was convicted after trial and sentenced to a period of seven years and nine months imprisonment. He now seeks leave to appeal against both conviction and sentence.

3. It was the case for the Crown that on the 1st December 1983 the applicant was stopped by a police party, who were conducting a stop and search operation close to the junction of Arran Street with Nathan Road.  He was carrying a handbag. He was asked to produce his identity card which he did. One of the constables wished to search the bag and the bag was handed over. As that constable started to open the bag, the applicant ran away along Nathan Road and towards Lai Chi Kok Road. Two constables chased him, one of them still holding the bag. At the junction of Nathan Road and Lai Chi Kok Road, a police inspector, who had been in a police land-rover parked there, got off the land-rover and blocked the applicant's passage. The applicant tried to turn around but was apprehended by the constables and the inspector. The applicant was then searched, arrested and told the reason for his arrest : that it was suspected he was in possession of dangerous drugs.

4. He was taken to a police station in the land-rover and, in the course of the journey, he was asked where he had got the drugs which the police had found in the bag he was carrying, to which question he made no answer. When the party arrived at the police station a further and more thorough search was carried out of the person of the applicant and two packets of drugs were found in his trousers pocket.

5. The applicant, who had previous convictions, did not give evidence but had, through his counsel, suggested that this was a police frame up. It was suggested that he had not been carrying the bag that this was brought up after his arrest, and it was further suggested that the drugs found upon him in the police station had been planted to give strength to the previous assertion of drug finding by the police. He called two witnesses, his wife and the salesgirl of a boutique situated in the Golden Plaza Shopping Arcade which has an entrance in Arran Street. A point taken in the court below, and taken even more forcefully by Mr. O'Reilly Mayne who appeared for the applicant before us, was a discrepancy in the police evidence as to where the identity card which the applicant had been carrying was found. That clearly emerged from the evidence of one of the constables, PC16086. In examination-in-chief, that witness had said he found the card upon the applicant in the police station. This assertion also appeared in a statement which he had routinely made some seven weeks after the incident. In cross-examination, he asserted that the card had been produced at Arran Street and seized there and that this was a matter which he had forgotten.

6. It has also been urged upon us that we should consider two further factors when contemplating the soundness of the prosecution case

7. The applicant's wife in her evidence said that after an arranged meeting between the two, she had gone shopping with the applicant in the Golden Plaza Shopping Arcade. There the wife had bought a dress from a salesgirl at a price of $250. While she was doing this, the applicant had waited at the door of the boutique but had entered the shop in order to pay for the dress. They left and the wife continued that, as she and the applicant were walking along the corridor, the applicant turned to speak to her and, as he did so, a man bumped into him causing him in turn to bump into her. She was knocked to the ground and her hand was hurt. The man apologized but an argument developed and blows were exchanged. Two more men came upon the scene and they joined in the attack upon the applicant. The applicant fled from the scene leaving the arcade by the Nathan Road entrance. She never saw the bag before and the applicant was not carrying it.

8. The other witness was the salesgirl and she stated that she had seen the wife colliding with the window of the shop and "sitting down". She was on the ground holding her hand. She then saw the applicant quarrelling with other persons and saw the applicant chase the men along the corridor which, around a corner, led into Nathan Road. These two witnesses then said that the wife having looked for the applicant went back into the boutique and waited there.

9. The wife went on that as he did not return she went to visit some relatives of hers, learned that the applicant had been arrested, went home and later that night saw the applicant in her home when the police were carrying out a search.

10. She said that some days later, she discussed going back to the boutique and then did so with a solicitor's clerk and with the applicant, he being now on bail. This visit took place about three weeks after the incident.

11. The salesgirl remembered her returning to the boutique on two occasions -once by herself and on the second occasion, with the applicant and a solicitor's clerk.

12. The jury were left in no doubt as to the issues involved. The trial judge gave them specific directions that it was not a matter of choosing between the two sets of evidence and that they must be sure of the applicant's guilt before they convicted and if they were not so sure or if they were in doubt, then they should acquit.

13. Mr. O'Reilly Mayne, in the course of the somewhat checkered history of this appeal, takes issue with the summing up in that he submits the discrepancies in the police evidence were not brought adequately to the attention of the jury; that there were non directions on many of that which he describes as "vital facts" and further that the defence both generally and particularly was not adequately put before the jury. He has argued that the matters to which we have earlier referred such as the identity-card contradictions the "improbability" of a man with drugs walking straight up to a police party and the issue of the nature of the search which took place in Arran Street were not properly brought to the attention of the jury. Further he says that the trial judge should have told the jury that police officers should be treated in exactly similar fashion as any other witness in the case and that their evidence is not more inherently truthful because of their office than that of any other of those witnesses; and, that he should have reminded them that police frameups have been known to happen.

14. But his basic contention is really that set out in the third ground of his Grounds of Appeal :

"All in all, Justice cannot be seen to have (been) done, let alone done. This Court will rarely entertain a lurking doubt when an accused has been convicted by a Jury after a model trial. This was not one. It was unsafe and unsatisfactory; and for the reasons given individually and collectively, it is respectfully submitted that this Court should use all of it's power to intervene in the interests of Justice and set aside this conviction.".

15. When the matter first came on for hearing on the 13th February of this year we decided, in the light of the nature of these grounds, that a transcript should be available and we so ordered. The matter was adjourned. The hearing proper commenced on the 21st May when there was an application to call additional evidence. Before addressing us in full upon that application, Mr. O'Reilly Mayne made his submissions in respect of his Grounds of Appeal generally. As it was uncertain at the end of that day's hearing as to precisely what persons were to be the subject of applications to call fresh evidence, we again adjourned the matter so that if possible, and with the freely given assistance of Mr. McClelland who appeared for the Crown, a person whom counsel thought would be of assistance could be traced. The matter was mentioned on the 28th May when the name of this person we were told had been ascertained and his whereabouts discovered through the Commissioner of Correctional Services. There was then before us a formal Notice of Motion, to which proofs of evidence had been attached, to adduce the additional evidence of the applicant himself and of his wife. We adjourned the consideration of that application until such time as there was a proof available from the third witness.

16. On the 8th August, we heard and determined the applications. We refused the application in respect of the applicant for he did not give evidence in the court below and he sought now to, in effect, have a bite of a cherry which he had earlier rejected - though we accept from the mouth of counsel, and it is not contested, that the identity of the third person had only come to the applicant's attention after conviction.

17. The extra, if one may term it that, evidence sought to be called from the wife amounted to no more than an amplification of the evidence she had already given in court and which was fully available during the bourse of the trial. We also refused that application.

18. However, we acceded to the application in relation  to the third person, one Wong Tung Fun. On the 22nd August,  he appeared before us and gave evidence.

19. In essence, he said that there had been an incident outside a shop in the corridor of the Golden Plaza arcade; that he had the two friends who were with him, Ah Wai and Ah Ming, had had an altercation and exchanged blows with a person after Ah Wai and that person had bumped into each other. He went on that there had been a woman present who had fallen to the ground and that he thought her to have worn spectacles. Wong and the two friends had chased the man out of the shopping arcade into Arran Street and up to near the junction of Arran Street with Nathan Road. He said he did not see any police. He could not remember the precise date upon which all this took place. He had gone to the shopping arcade, had purchased for himself a pair of jeans and was carrying a paper bag supplied by the shop with the jeans in it. He had no knowledge of any handbag. When asked to take a look at the applicant in the dock, he said that the applicant was similar to the man with whom he and his friends had had the altercation.

20. He had been interviewed in prison at the end of June by a party including Mr. O'Reilly Mayne, his junior and by solicitor's clerk and had been asked about the Golden Plaza, whether he had visited it and if he had any recollection of any quarrel. This appeared in his proof. He was cross-examined from that proof and that which he said in court differed from that which he had said to Mr. O'Reilly Mayne. In the proof, he said that he had visited the Golden Plaza, that he was with three friends whose full names he did not know and whom he could not now trace. One of them was Ah Wai whom he had known for some years and who kept a newspaper store outside a Chinese restaurant close to the Golden Plaza. He stated that, on the occasion he did visit it about the 1st of December, they had not entered the shops and they did not even look in the shop windows. He stated that he did not recall having any dispute or quarrel or struggle with anybody in the Golden Plaza.

21. As I have said before us he had given in considerable detail an account of his visit, though again he is unclear as to the exact date, placing the event sometime between the end of November and the early part of December, even down to the fact that he had had tea at 2:15 on the afternoon of that visit prior to going to the Arcade. When asked why his evidence so differed from that contained in his proof, he first suggested that he was not aware of the area about which he was being asked by Mr. O'Reilly Mayne - this despite the fact that he had clearly said that he was familiar with it and that his friend kept a newspaper store close by - second that he was scared if he told the truth that he would be involved in an assault case, that fear being subsequently altered to of "being involved in a drugs case", and third that at the interview he could not remember anything about the matter at all.

22. Wong is presently serving a sentence of 12 years imprisonment imposed upon convictions for two offences (1) of manufacturing of dangerous drugs and (2) of being in possession of dangerous drugs for the purpose of unlawful trafficking. He had received that sentence upon his pleas of guilty. He has not sought to appeal those sentences.

23. It would seem that between the end of June and the hearing his memory had undergone a considerable revival. We do not accept his explanations for the difference between that which he said in June and that which he has said in court. We are not prepared to treat him as a witness of credibility. In those circumstances, he adds little to this appeal.

24. We do not accept the strictures which Mr. O'Reilly Mayne has leveled against the content of the summing up. It was full and it was fair. It placed the issues fully before the jury. The jury were aware that they did not have the benefit of evidence from the applicant. They were aware of the inconsistencies in the case for the prosecution and they had the benefit of a full and detail address from counsel then appearing for the applicant it was a matter for them, on the whole of the evidence, to come to their conclusions and they were, despite Mr. O'Reilly Mayne's most valiant efforts to persuade us to the contrary, entitled to come to the conclusion of guilt. While we are indebted to counsel and his assistants for a most painstaking endeavour to substantiate the possibility of a grave miscarriage of justice we say despite certain oddities in this case, that these are not sufficient to excite the lurking doubt that counsel urged us to entertain.

25. In the event, the application for leave to appeal is granted - the hearing treated as the hearing of the appeal and the appeal against conviction is dismissed.