THE QUEEN v. YEUNG WAI CHUNG

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Yeung Wai Chung was convicted, after trial, before Mr. Peter Cheung (as he then was) sitting as a Deputy Judge of the District Court, of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to a period of 4 years imprisonment. He seeks leave now to appeal against his conviction.

3. It was the Crown's case that, on 8th August 1990, police had laid an ambush at the 2nd floor podium of the Tung Tau Chuen Market at Tung Lung Road, Kowloon. This ambush had nothing to do with the applicant.

4. While there they saw the applicant and a person, Chan Yee Lap, walking to and fro, entering a restaurant and then leaving. Chan had a portable telephone.

5. When they left they hailed and boarded a taxi. That taxi was stopped by the police, one of whom opened the right rear door and saw the applicant sitting behind the driver's seat holding a packet which he dropped to the floor. DPC12772 (PW1) picked up that packet.

6. When asked what it was the applicant replied by asking for "a chance". He was then told if there was no explanation forthcoming he would be arrested for possession of dangerous drugs for the purpose of unlawful trafficking. The man Chan was on the left hand side of the taxi, behind the passenger seat, and he was arrested for the same offence.

7. In evidence at trial the applicant accepted that he had been with Chan whom he had met by accident. He said that he, the applicant, had a portable phone. They had boarded a taxi whereupon two police officers came up and the applicant was pulled out and addressed by PW3, DPC10426 who said: "How dare you collect protection money in my place". The constable then punched him and tried but without success to handcuff him. The applicant said in cross-examination that his answer to the constable was: "What is the matter, I know nothing. It doesn't concern me." He also said "You made a wrong identification."

8. Chan had remained in the taxi and was questioned by DPC12772. Chan was later taken out of the taxi and handcuffed. When DPC12772 and. Chan came over to where the applicant was, the DPC was holding a packet and said to DPC10426: "Hey, there is this packet." It was only then that the applicant and Chan were asked if they knew what it was. To which question they replied that they did not know. The applicant went on that DPC10426 then said:

"Now both of you had been arrested, now picked (sic) either one of you to admit and I'll release one, don't say you had not been given a chance."

9. In his defence, the applicant called Chan Yee Lap. Chan having been originally charged with possession of dangerous drugs for the purpose of unlawful trafficking was, at the time of transfer to the District Court, released, the Crown not proceeding against him.

10. It was Chan's main evidence that, after he had had his collar grabbed by one of the policemen, that policeman had stooped down and picked up a packet from the ground outside the taxi. There were some slight differences between his evidence and that given by the applicant but Chan said that he had not yet been handcuffed neither had the accused at the time they were told to squat down on the pavement. He supported the applicant's evidence that they were asked at that time what the packet was and that the response of both of them was to the effect that they did not know. He also supported the applicant in relation to the suggested choice which had been offered by DPC10426.

11. The taxi driver, having been summoned by the Crown but not having been called, was called by the defence. The taxi driver was then unable to identify the men who had boarded his taxi on 8th August but he was able to say that one of the two was wearing white upper clothing. The two men had each opened the rear doors of the taxi and got into it. After the police arrest, he could see in his rear view mirror that the man wearing the white clothing was sitting on the left hand side, that is behind the passenger seat. The driver also said that one of the two intercepting policemen had gone to the left hand side of the taxi and the other had stood in front of his vehicle before going on to the right hand side of the taxi. Each opened the respective rear door and each arrested one of the men. He also stated that he did not hear the two arrested men say anything.

12. The explicit conflict at trial, and hence the issue of credibility, was as to the position of the applicant in the taxi for DPC12772 placed him seated behind the driver. The taxi driver's evidence - and there was no dispute that it was the applicant who was wearing white clothing - placed him on the left hand side, that is behind the passenger seat as did the evidence of the applicant and Chan.

13. At page 9 of the Reasons for Verdict, the trial judge said this:

"    It was for the Crown to prove its case beyond reasonable doubt. I have observed PW1 in giving evidence. His evidence was not. shaken in cross-examination. I accept him to be a truthful witness. I accept his evidence. I find that he opened the right hand rear door of the taxi. I find that PW1 saw the Accused sitting on the right hand side, holding the packet of dangerous drug and dropped it onto the floor of the cabin of the taxi. Insofar as this evidence is at variance with that of the Accused and Chan, I prefer the evidence of PW1. I had observed the Accused and Chan in giving evidence and I do not accept them to be truthful witnesses.

    It remains to be considered the evidence of the taxi driver that the man who was wearing the white clothing was on the left side of the taxi when the police arrested the man.

    The driver only made the observation through the rear view mirror which was not a satisfactory observation. I find the taxi driver's recollections of the events were not as accurate as he put it. He said the 2 men in the taxi did not say anything when they were arrested by the police. This certainly was contradicted by PW1's evidence who said the Accused said 'Ah Sir give me a chance.' I find the driver's memory was faulted.

    In the end I do not find that the evidence of the taxi driver is reliable or can provide an independent source of support for the Accused's story or challenges the Crown's story. Again, I find that the driver was not accurate when he said one of the policemen first went to the left hand door of the taxi. I accept PW1's evidence that he was ahead of PW3 and he went to the right door of the taxi." (Emphasis supplied)

14. Mr. Macrae, who appeared for the applicant in this court, advanced two grounds of appeal: the second being the roll-up "unsafe and unsatisfactory". In his first ground Mr. Macrae submits that the trial judge erred in his evaluation of the evidence relating to the seating position of the applicant in the taxi. This in particular:

"(a)    by suggesting that 'Insofar as this evidence is at variance with that of the accused and Chan, I prefer the evidence of PW1' (p.9 Appeal Bundle) may have departed from the appropriate standard of proof;

(b)    did not disbelieve the evidence of the taxi-driver (DW3) that the man in the white upper garment (i.e. the applicant) had sat in the rear nearside seat of his taxi but purported for a variety of erroneous reasons to find that DW3's memory was faulty (see p.9-10 Appeal Bundle)."

15. Mr. Macrae accepted that, on the face of it, it was a straight-forward set of facts but the issue as between the evidence of the taxi driver and the evidence of the police officers - for if the taxi driver be right then this cast doubt upon the identity of the person carrying the packet and indeed if a packet were carried at all - had to be properly resolved. Further, he says, that, as the taxi driver was called as a Crown witness and had presumably given a statement to the police and it was not suggested that anything in that statement contradicted the evidence he gave in court, the trial judge should have weighed this in the balance in considering the strength of his evidence.

16. On the question of whether either of the arrested persons said anything at the time, and the reference by the judge at page 10 of the Reasons for Verdict to the taxi driver having stated that neither of them said anything when they were arrested by the police, Mr. Macrae referred us to page 81 of the transcript where the following question and answer appear:

"Q. Before you left the scene did you hear anything between the two men and the policemen?

A. Those two men did not say anything."

The police evidence referred to that which took place while the applicant was still in the taxi. The taxi driver's evidence referred only to "before he left the scene".

17. With respect to the trial judge, his encapsulation, in the passage of Reasons quoted above, of that piece of evidence was a trifle obscure. Generally, says Mr. Macrae, the taxi driver's evidence in fact supported the Crown. The only basic disagreement being who was sitting on the left hand side of the taxi. He argues, therefore, that, when the trial judge found the evidence of the taxi driver to be inaccurate, the reasons he gave being unreliable reasons, his finding cannot be supported.

18. Mr. Macrae further submits that the trial judge came to disbelieve the evidence given by the applicant, and by Chan, before he considered the evidence given by the taxi driver and which was evidence he only evaluated at a later point. It is incumbent upon a trial judge to evaluate the whole of the evidence before making his findings. The combination of factors does, Mr. Macrae suggests, leave the eventual conviction in some degree of uncertainty. While he did not specifically spell it out he was really asking us to entertain a lurking doubt as to the safe and satisfactory nature of this conviction.

19. Mr. Saw, who appeared for the Crown in this court, referred us to the quality of the evidence generally adduced by the Crown and asked us to note that, DPC10426 having been tendered by the Crown for a cross-examination, it was in response to questions put by counsel then appearing for the applicant that he supported all aspects of the evidence given by DPC12772. The trial judge was entitled to consider the taxi driver's memory to be faulty for he did preface some of the evidence he gave with the expression "If my memory serves me". This, we accept, indicated that his recollection may not have been as clear as Mr. Macrae would wish it to be. The trial judge's encapsulation of the "not say anything" point may have been a little obscure, nevertheless, there is a distinction between "when arrested" and "before you left the scene" and the issue was not pressed by counsel then appearing for the applicant.

20. The use by the trial judge of the phrase "I prefer" When evaluating the evidence of DPC12772 is not something to be encouraged. There can be no doubt that the trial judge was fully aware of the burden placed upon the Crown to prove reasonable doubt. The use of expressions of this nature tends to give rise to arguments that a trial judge, as Mr. Macrae rather gently put it, "may have departed" from that standard of proof. We are satisfied that he did not.

21. Having considered with some care, because they have some point, the submissions made to us by Mr. Macrae, we are not prepared to find that the trial judge's view of the reliability of the evidence of the taxi driver was one to which he was disentitled to come or one to which he came for the wrong reasons. We do not think that this conviction is unsafe or unsatisfactory. We would dismiss this appeal.