HKSAR v. CHAN KIM MAN

HCMA 48/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 48 OF 1999

----------

----------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted with another defendant ("the other defendant") on 20 February 1998 of the offence of trafficking in dangerous drugs and sentenced to 18 months' imprisonment. After the other defendant succeeded in an appeal before my learned brother, Nguyen J (HCMA 281/98, 5 August 1998, unreported), the appellant sought an extension of time to appeal against conviction from the magistrate who convicted him. The extension of time was granted on 28 December 1998.

2. The offence for which the appellant was convicted arose out of a transaction that allegedly took place on 3 June 1997. According to the police witnesses who gave evidence before the magistrate, there was a sale of a small packet of heroin by the other defendant and the appellant to an undercover police officer, PW1. The prosecution evidence which the magistrate believed and accepted was that the other defendant was the person who contacted PW1 and sold the small packet of heroin to him, whereas the appellant was the person who was directed by the other defendant to bring out the packet and handed the packet to PW1. Thereupon PW1 left the place and made a pre-arranged signal that a sale had been completed. PW4 and PW6 were officers in an observation team nearby and witnessed the conduct of PW1 and the two men from about 15 metres away. They went forward to search the appellant and the other defendant about four minutes after PW1's departure.

3. After reciting the facts of the case and very carefully examined the evidence, Nguyen J concluded that "there must be a lurking doubt about the correctness of" the conviction of the other defendant and he quashed the conviction. I am in general agreement with the reasoning of Nguyen J in his judgment. What I consider most damaging to the prosecution's case and evidence are the following three matters:

(a) The operation was aimed at arresting drug traffickers and PW1 was given some marked $100 notes for the purpose. PW1 told the magistrate that he gave one of the marked notes to the other defendant. It was most surprising and indeed defeating the purpose of the operation that when PW4 and PW6 went up to search the appellant and the other defendant, and a number of $100 and $20 notes having been found on the two persons, the officers did not check if any of the found $100 notes was a marked one.

(b) PW4 and PW6 did not immediately arrest the appellant and the other defendant when they found no suspected dangerous drugs on the two men. The officers just took the identity card numbers and particulars of the two men and let them go. The other defendant was arrested sometime towards the end of June and the appellant were arrested on 25 August 1997.

(c) PW1 arrived at the police station about 15 minutes after his purchase of the small packet. He handed it over to a police sergeant, PW2. After putting the small packet in an envelope, sealed and signed it as the seizing officer, PW2 handed the sealed envelope to the Duty Officer of the station, PW3. The time of the seizure of the exhibit was described as 15:35 hours, which was the time when PW1 handed over the packet to PW2, not the time when PW1 obtained the packet from the other defendant. Neither the other defendant nor the appellant, after their respective arrests, were asked if the packet came from them or whether they had any explanation about the packet.

4. These three matters are in fact very much related. If the instructions, according to the police evidence, from the sergeant who was in charge of the team in operation on 3 June 1997 to his junior officers were to let go of drug traffickers on whom no dangerous drugs could be found, then no purpose would have been served by equipping PW1 with the marked money. The marked money must be for the purpose of having evidence against the person from whom PW1 obtained the dangerous drugs. The offence of trafficking is much more serious than the offence of possession, and while the instructions were to effect arrest where drugs were found upon search, it is incomprehensible why where there was the clear evidence of PW1 having bought a packet of suspected dangerous drugs from the other defendant and the appellant that they were not arrested, albeit no drugs were found on their persons. It is also difficult to understand why the two searching officers did not check if a marked note was among the money they got out of the two persons. If the sergeant's instructions or the modus operandi of the operation were to let go of persons searched where no dangerous drugs were found, then it is difficult to explain why the appellant and the other defendant were arrested later for the offence. They were not arrested immediately on 3 June 1997 or soon thereafter when the evidence against them was fresh in the minds of all the police officers, when explanations could be proffered by the alleged drug peddlers also with the events fresh in their minds. PW6 had obtained the particulars of the appellant and the other defendant from them during the search, including their residential addresses, but no arrest was made of the appellant until 25 August 1997, and even that arrest appeared to have nothing to do with the events that the police officers told the magistrate as occurring on 3 June 1997.

5. The police team was an anti-drug squad. According to PW1, he was able to buy the small packet of drugs from the other defendant. That packet was given to PW2 as an exhibit on 3 June 1997, but without any person being accused at the time. After their respective arrests, the other defendant and the appellant were not given an opportunity to explain about this packet. Even if they had, then it would have been a packet shown to them at the police station, long after the police had obtained it, or more pertinently obtained it from them. This is far from satisfactory, as it would lay open to allegations such as an arrested person is shown a packet of drugs said to be found on his person, which would tend to weaken the case of a prosecution.

6. As Nguyen J did, I have come to the same conclusion that there are grave doubts in this case. I would allow the appeal and quash the conviction.