HKSAR v. SUFYAN, LOWN AND ANOTHER

HCMA 316/2021

[2022] HKCFI 2855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 316 OF 2021

(ON APPEAL FROM WKCC 4154 OF 2019)

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BETWEEN

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J U D G M E N T

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1.  The appellants (A1 and A2) were convicted after trial by a magistrate[1] of a joint charge of trafficking in dangerous drugs contrary to section 4 (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (charge 4). A1 was also convicted of a similar offence to which he was solely charged (charge 5).

2.  The magistrate sentenced A1 to a total of 6 months’ imprisonment and A2 to 5 months’ imprisonment.

3.  The appellants now appeal against their convictions.

Prosecution case

4.  The prosecution case was that between 17 December 2018 to 9 March 2019 PW1, an undercover police officer took part in a police force organized operation in relation to investigating illegal gambling and trafficking dangerous drugs at a game centre known as Fat Tat Shing TV Game Centre, at No.138-148 Fuk Wing Street, Sham Shui Po (the Game Centre). The prosecution case was that A1 and A2 either jointly or solely sold drugs to PW1 at the Game Centre. PW1 identified A1 as C17 and A2 as C38 in his undercover log book.

Charge 4

5.  The prosecution case was that on 27 January 2019 inside the Game Centre shortly before midnight A1 and A2 sold 4.91 grammes of cannabis resin to PW1 for a sum of $300.

Charge 5

6.  The prosecution case was that on 30 January 2019 shortly past midnight at about 0040 hours A1 sold 10.57 grammes of cannabis resin to PW1 for a sum of $600.

Admitted facts

7.  At 2245 hours on 9 March 2019, DPC 12909 arrested A1 outside 159 Fuk Wing Street, Kowloon in relation to this case. At 2056 hours on 18 March 2019, PC 26282 arrested A2 at Foon Lok Amusement Games Centre, 137 Fuk Wa Street, Kowloon in relation to this case.

8.  PW1 identified A1 and A2 in two separate identification parades held on 24 April 2019.

Non-disputed facts

9.  It was not disputed that PW1 was not present at the arrests of A1 and A2.

Defence case

10.  The appellants elected not to give evidence or call any defence witnesses. The appellants denied they sold drugs to PW1. It was their case that PW1 had mistakenly identified them amongst other South Asian people who were at the Game Centre at the material times.

11.  A1’s case was that PW1 identified him incorrectly but identified A1 because he was similar to another South Asia person who had sold him drugs. PW1 also identified A1 as a person by the name Ali. A1’s name was not Ali and nor did his name or nickname bear any resemblance to the name Ali. A1 never sold drugs to PW1.

12.  A2’s case was that at about 2010 hours on the 27 January 2019 he was introduced to PW1 at the Game Centre. At the time PW1, A2 and a few other South Asians shared and smoked a rolled cigarette outside the Games Centre. Shortly before 2300 hours A2 handed to PW1 a small size piece of black stuff which was wrapped by a transparent thing. A2 left the Games Centre at 2300 hours.

13.  At the trial the appellants were separately, A1 was represented by Mr William Allan and A2 represented by Mr James C C Cheng. In the present appeal Mr Allan represents both appellants.

Issues at trial

14.  The main issue at trial was the credibility of PW1. The central issue was the identification of the appellants as the ones who sold drugs to PW1.

The magistrate’s findings

15.  The magistrate found PW1 to be an honest and reliable witness and accepted his evidence. He rejected the appellants case.

16.  The magistrate found in relation to charge 4 that PW1 arrived at the Games Centre at 2225 hours on the 27 January 2019. At about 2340 hours A1 spoke to PW1 in unnatural or impure punti relating to the sale of game points. PW1 and A1 had exchanged the game points for cash. After the exchange, PW1 told A1 that he would not play anymore games as he was not feeling well. A1 then asked him if he needed anything. PW1 asked him what. A1 replied with a gesture of smoking a cigarette and said cannabis resin for $300. PW1 asked if it can be cheaper. A1 then went to speak to A2 who was about 4 metres away. A2 then approached PW1 and said $300 was already very cheap. PW1 agreed to the purchase of cannabis at $300. A1 then approached PW1 stuck out his right hand and asked for the money. PW1 then paid A1 $300. A2 then spoke to PW1 in impure punti and told him to wait. A2 left the Games Centre and returned shortly thereafter. A2 then handed PW1 the drugs which was a stick like object with the length of 8 centimetres wrapped in transparent plastic. PW1 then left the Games Centre and took the drugs to a safe house and handed them over to PW2 the exhibits officer at 0300 on 30 January.

17.  In relation to charge 5, on 29 January 2019 PW1 arrived at the Game Centre. PW1 had a verbal conversation with A1 about exchanging game points. A1 exchanged PW1’s game points to money. A1 then spoke to PW1 in impure punti asking PW1 whether he wanted more cannabis resin. PW1 asked him how much are 2 sticks, A1 replied two for $600. PW 1 then paid them $600 and left the Game Centre.

18.  A station sergeant who was the handler/controller authorized PW1 to use his own person money, no marked money was used for the purchase of the drugs by PW1. PW1 received reimbursement from the station sergeant.

19.  The magistrate accepted PW1’s evidence that he met A1 for the first time on 4 January 2019. PW1 described A1 as a South-Asia male aged around 40 years old, fat build, black short hair, about 1.7 metres tall, and his nickname was “Ali”. PW1 referred to A1 as “C17” in his undercover log book. PW1 described A2 as a South-Asia male aged around 25 years old, thin build, black short hair, and about 1.7 metre tall. PW1 referred to A2 as “C38” in his log book.

20.  PW1 described the lighting in the game center as the same lighting that was in the trial court room. All the lighting was turned on. PW1 conducted his verbal communication with A1 and A2 within a distance of about 1.5 metres. PW1 said he had met A1 in total 15 times. PW1 had met A1, 5 times before 27 January 2019. PW1 had met A2 in total 3 times. The first time PW1 met A2 was on 27 January 2019, he then met A2 again on 18 and 24 February 2019.

21.  The magistrate reminded himself of the relevant legal principles on identification as set out in R v Turnbull [1976] 63 Cr App R 132. He found that PW1 made a correct identification of the appellants as PW1 had a good and detailed observation of the appellants. The magistrate further found that PW1’s identification of A1 was one of recognition.

Grounds of appeal

22.  Mr William Allan counsel for the appellants relied upon six grounds of appeal. They can be paraphrased into the following three grounds.

Ground 1 credibility and reliability of PW1

23.  Ground 1 relates to the extensive criticisms of the magistrate accepting PW1’s evidence when PW1’s evidence was the sole and uncorroborated against the appellants. It was submitted that the magistrate erred in relying on PW1’s evidence when the evidence showed PW1 lied, gave inconsistent and contradictory evidence.

Ground 2 Mistaken Identification

24.  The magistrate erred in law in failing and or omitting to give himself any or any proper direction on the issue of mistaken identification by PW1 of the appellants. The magistrate erred in law in incorrectly applying the “Turnbull guideline” on the issue of identification.

Ground 3 the magistrate erred in law in rejecting the defence evidence as the truth

25.  The magistrate erred in rejecting the appellants’ version as the truth when neither the 1^st or 2^nd appellant gave evidence nor called any witness at the trial. The appellants should be acquitted as there was no evidence given by the appellants at the trial the magistrate erred when he reminded himself that if the 1^st and/or 2^nd appellants evidence is true or maybe true.

THE APPELLANT’S SUBMISSIONS

Ground 1

26.  I turn to deal with ground 1. Mr Allan strongly and extensively criticized the magistrate in accepting the credibility of PW1. Mr Allan submitted that PW1 gave contradictory answers on whether A1 spoke punti. PW1 had lied when he disagreed that he did not say A1 did not speak punti. As PW1 was shown to have lied the magistrate was wrong to have relied on his evidence, particularly as it was uncorroborated. He relied on the case of HKSAR v Krishan Kumar, and Sangari, Deepak.[2]

27.  Mr Allan submitted the transcript shows the inconsistency and lies of PW1 in relation to:-

(i) the language A1 used when he allegedly spoke to PW1 and

(ii) on PW1’s evidence in relation to game points.

Mr Allan complained that the magistrate’s finding that PW1 gave evidence in a straight forward manner, without any hint of evasiveness was wrong and against the background of PW1’s completely unreliable and uncreditworthy and untruthful evidence as the transcript of PW1’s evidence shows.

Language

28.  Mr Allan relied heavily on the inconsistency of PW1’s evidence about whether A1 spoke punti. Mr Allan further contends that PW1 was caught lying when PW1 denied he said A1 did not speak punti.

29.  PW1’s evidence in chief was that he conversed with A1 who spoke to PW1 in impure punti. In cross-examination by Mr Allan PW1 was asked about the conversation with A1 and if he could remember the first words spoken to A1. PW1 could not recall. In answer to Mr Allan as to what language A1 spoke PW1 said he did not know the language A1 spoke but A1 “did not speak punti”. In later questioning Mr Allan put to PW1 that PW1 has said earlier that A1 did not speak punti. PW1 disagreed. PW1 only admitted he had said that A1 did not speak punti after the audio recording of the proceedings was played in court. It was argued by Mr Allan this was an obvious lie by PW1. PW1 then admitted that when he uttered the words that A1 did not speak punti that was not true. Mr Allan suggests PW1 admitted he lied. Mr Allan contends that in view of PW1’s inconsistent evidence and admission of lies the magistrate erred in finding in accepting PW1’s evidence and finding him an honest and reliable witness.

Discussion

30.  I have read in full the transcript in relation to PW1’s evidence relied upon by Mr Allan. The transcript shows a long, extensive detailed cross-examination of PW1 by Mr Allan.

31.  Having read the transcript of the evidence it is clear from PW1’s evidence in chief and in cross examination that the conversation he had with A1 was in “impure” punti. PW1 explained that this meant that A1 did not speak to him in fluent or pure punti[3]. PW1 was cross-examined as to whether he himself could speak English[4]. PW1 said he could speak broken English but he could not speak fluent English. He then admitted he could not speak English. The exchange was as follows:-

“Q. My question to you, Officer, was you spoke in broken English; is that right?

A. I agree.

Q. You don’t speak English, do you?

A. Incorrect.

Q. Sorry?

PUNTI INTERPRETER: ‘Not correct.’

Q. You speak English?

A. I do speak English but then I do not speak English fluently.

Q. Well, there’s a big difference, Officer. I speak some French but I speak broken French. Please, answer the question truthfully. Do you speak English?

A. I know ...

PUNTI INTERPRETER: ‘I do ...’

A. ... speak English but I do not quite speak English.

Q. Right, then. Good. So you can give your evidence in English, then?

A. No, I would not.

Q. What do you mean? Why won’t you give your evidence in English if you can speak English?

A. Because my English is not fluent and I’m afraid that I will misunderstand the words said by counsel or other people.

Q. So you don’t speak English. Admit it.

A. I agree.

Q. Well, a moment ago, you said you spoke English. Which is it? You just agreed you don’t speak English and, a moment ago, you said you did speak English. Which version is it, Officer?

A. I do know English but I could not speak English fluently and I could not listen to English

A. ... clearly and I could not understand the meaning of every single English word.

Q. So, ‘I cannot understand English clearly’. I put it to you you cannot speak English fluently.

A. I agree.”

32.  It was after the above exchange that PW1 was asked if A1 spoke punti and PW1 said A1 could not speak punti and does not know what language A1 spoke, but that A1 spoke to him in punti that was not pure or fluent[5]. It is clear when PW1 said A1 did not speak punti, PW1 meant it was because A1’s punti was not fluent but not that A1 did not speak any punti at all. When PW1 said it was not the truth that A1 did not speak punti, he was referring to A1’s inadequacy in speaking Punti. Having examined in detail PW1’s evidence in the transcript and in context there was no lie nor inconsistency in his evidence about whether A1 could speak punti. PW1’s evidence was consistent that A1 did not speak fluent and pure punti but spoke broken or “impure” punti. PW1 however categorized A1 as a person who “did not speak punti” because A1 was unable to speak punti fluently.

Game points

33.  In examination in chief PW1 related his conversation with A1 was about exchanging game points to money and after exchanging the game points then A1 started the conversation about the dangerous drugs. In cross-examination by Mr Allan questioned PW1 about the words spoken in the conversation with A1. PW1 then related for the first time his accumulation of 180,000 game points which he exchanged with A1 for $500. PW1 said he did not mention the specifics about the number of game points in his examination in chief PW1 because he was not asked. Mr Allan contends that PW1 was given an opportunity to recount the details of this conversation with A1 in chief however as PW1 never mentioned this specific amount of game points and amount of cash PW1 was lying.

Discussion

34.  It is evident from the transcript that that the number of game points mentioned by PW1 was because of the depth and detail of Mr Allan’s cross examination, beginning with whether PW1 could recollect what were the first words spoken between PW1 and A1. PW1 said he could not remember what were the first words spoken between A1 and PW1 but the conversation was related to game points. After many questions about A1’s ability to speak punti was raised, Mr Allan returned to the first words spoken to A1. PW1 again said he could not remember what were the first words spoken between A1 and PW1 but the conversation was related to game points. PW1 was then asked to relate the conversation in relation to the conversion of game points[6]. It was then that PW1 related the details of the 180,000 game points in exchange for $500 cash[7].

35.  The fact that PW1 did not mention the specific number of game points and the amount of cash in his evidence in chief is not material to his credibility. PW1 had consistently referred to the game points and exchange for money with A1. It was only after PW1 was asked to recall the words of the conversation that he mentioned the specifics about the number of game points and cash.

36.  There is no merit at all in the ground that the magistrate was wrong in accepting PW1 as a credible witness.

Ground 2- mistaken identification by PW1

37.  PW1’s evidence was that the game centre was frequented by quite a few South Asians. On 27 January 2019 there were 3 South Asians in the game centre. It was submitted by Mr Allan as there were other South Asians in the game centre there was a real possibility of a mistaken identity made by PW1. Mr Allan submitted that detailed descriptions of the traffickers were therefore vital to identification. PW1 had not met A2 prior to 27 January and had only seen him twice afterwards and therefore the possibility of PW1 being mistaken as to his identity was even greater.

38.  Mr Allan contended there was a lack of description and record in the occurrence book of A1 and A2. He also argued that there was a misidentification of A1 being known to PW1 as “Ali” when there was another suspect called Ali who was coded as C8 by PW1 in his occurrence book. A1’s name was not similar nor did it contain the word Ali. When PW1 identified A1 as a person called Ali he was mistaken because C8 was that other person called Ali.

39.  Mr Allan relied on the case of HKSAR v Limbu Risesh CACC489/2006 that the identification evidence of PW1 was of such a poor quality that it should not have been relied upon and there was importantly no supporting evidence for the identification made by PW1.

Discussion

40.  The magistrate was well aware that identification was a major issue. The magistrate correctly reminded himself of the importance of and principles in R v Turnbull and the risk of misidentification.

41.  The magistrate accepted PW1’s evidence that he first met and communicated with A1 on 4 January 2019. The magistrate found that PW1 had marked down the descriptions of A1 in the occurrence book on 4 January 2019. The magistrate found that it was not necessary to mark down the detailed description again when PW1 saw A1 again. PW1 in fact did not write down the detailed descriptions of A1 thereafter. PW1 met A1 on 27 January 2019 and 29 January 2019 at the game center and in total 15 occasions before the operation turned overt in March 2019. On each occasion, PW1 met A1 face to face, at a distance of less than 1 metre with sufficient lighting and talked to him. The magistrate was correct to find that this was a case of recognition against A1. The magistrate warned himself about the risk of PW1 confusing A1 with another person named Ali but found that PW1 identified A1 based on his recognition of A1 and not because of the name Ali.

42.  As to A2, PW1 did not mark down his description. The magistrate found that during PW1’s encounter with A2 the distance between them was less than 1 metre. PW1 saw his facial features clearly in sufficient lighting and had verbal communications with A2. He found PW1 had a very good and close observation of A2 over the period of time he was with A2. The magistrate went on to say that in an operation like the present where there was no plan to arrest the persons involved at the material time, it was PW1’s job to memorize the appearance of the persons involved. The magistrate therefore had no doubt about PW1’s correct observation of A2.

43.  The magistrate had given the Turnbull direction in respect of the identification of the appellants by PW1. In view of the number of contacts between A1 and the undercover police officer, PW1, there was ample evidence of identification against A1. A1 was not identified because of his name. The magistrate was satisfied that PW1 identified both A1 and A2 because of their facial appearance, his close proximity and the appellants’ engagement in conversation with PW1. The identification of A1 and A2 was not a fleeting encounter in poor lighting conditions. It was not weak or poor. There is no substance in the ground that PW1 mistakenly or wrongly identified A1 and A2.

The arrest of the appellants some six weeks after the alleged incidents by other police officers

44.  Mr Allan submits that the arresting officers could only have had a general description of A1 and A2. The appellants were arrested about 6 weeks after the alleged offence. At the time of their arrest PW1 was not present. PW1 only identified the appellants in an identity parade some 3 months after the alleged offences. Mr Allan contends that this period of 3 months was a long time between the date of the alleged offences and therefore PW1’s identification of them was mistaken. Further Mr Allan argues that it was too much of a coincidence that the males arrested on the streets were the persons involved in the trafficking of drugs to PW1 in the two charges. Any identification made by PW1 was therefore mistaken or wrong.

Discussion

45.  The arrests of the appellants by other police officers has nothing to do with PW1. It is not known what information those police officers based their arrests on to arrest the appellants. What was not in dispute was that PW1 identified A1 and A2 in separate identity parades after their arrests. The arrests made by other police officers or after some 3 months does not weaken or cast doubt on PW1’s identification of the appellants. There is no merit in this ground.

Grounds 3

46.  A1 and A2 did not give evidence at the trial. Mr Allan complained since they did not give evidence, the Magistrate had nothing to reject and should not have reminded himself of the possible truthfulness of their evidence. The magistrate erred, therefore the appellants should be found not guilty.

Discussion

47.  The magistrate was well aware the appellants did not give evidence at the trial. At paragraph 127 of the Statement of Findings he said:-

“127. D1 and D2 both elected not to give evidence in Court. That is their right, they do not have to give evidence. The Court will not draw any adverse inference against them by reason of their such elections. The Court will not assume D1 and/or D2 is/are guilty because they have not given evidence. I have further reminded myself that the exercise of their right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.”

48.  It is clear that the magistrate reminded himself that the appellants had a right not to give evidence. He went on to warn himself that the prosecution has the burden of proof and the appellants do not need to prove their innocence.

49.  At paragraph 133 he said:-

“The Court has reminded itself that if D1 and/or D2 evidence is true, or may be true, or the prosecution evidence cast doubt, the Court must acquit the D1 and/or D2.”

50.  In the present case although it was not ideal for the magistrate to have mentioned if D1 and D2’s evidence is true or maybe true, what he was clearly doing was reminding himself if the appellants’ case was true or maybe true the court must acquit the appellants. This submission was wholly unfounded.

Conclusion

51.  PW1 was searchingly cross-examined. The magistrate gave a detailed and reasoned 30 pages Statement of Finding. The magistrate thoroughly dealt with the points and issued raised in Mr Allan’s closing submissions, which also spanned some 30 pages. I am satisfied that the magistrate had a very thorough understanding of the issues at trial and points made in closing submissions. The magistrate carefully and meticulously considered all the evidence given before him. The magistrate was aware and demonstrated in his statement of findings that he analyzed and considered all the evidence and applied the Turnbull guidelines correctly. He found PW1 to be an honest and reliable witness and accepted his evidence.

52.  There is nothing in the magistrate’s Statement of Findings which indicates to me that the magistrate’s approach to the evidence was in any way wrong.

53.  I have thoroughly reviewed every detail of the evidence in the transcript with the advantage of Mr Allan’s closing speech to the magistrate and the grounds of appeal. I am satisfied that the convictions were properly established against the appellants.

54.  The appellants appeal against their conviction is dismissed.