HKSAR v. HUNG HON YEE

HCMA250/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 250 OF 2008

(ON APPEAL FROM KCCC 3501 OF 2007)

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J U D G M E N T

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1. This is an appeal against two convictions for the possession of dangerous drugs.  Police officers were keeping an eye on an address in Beacon Hill on 1 June 2007.  They saw a taxi arrive.  There were admitted facts that that taxi had left Kwun Tong at 6.35 that evening; that  a passenger got out of the taxi and went to the entrance of 1 Beacon Hill and there he handed a white plastic bag to the appellant, and then went back to the taxi which left the scene, going back to Kwun Tong. 

2.            Officers moved in on the appellant and found in the plastic bag two packets of cigarettes and some dangerous drugs.  The plastic bag itself, which carried all the items, was opaque but inside the plastic bag one would have seen the two packets of cigarettes, and two transparent plastic bags which each contained a number of other plastic bags which were, in turn, transparent which contained powder turning out to be, in the case of one bag, 1.52 grammes of cocaine; the other, 3.07 grammes of cocaine.  The officers took the appellant into his home and there they found further cocaine.  It was contained in a packet of cigarettes and weighed .55 grammes; and there was a trace found on a one hundred dollar banknote there. 

3.            When arrested in respect of both matters, the appellant elected to make no reply, as was his right.  Some five hours passed before a post-record was made and at that point, he advanced an explanation which I can summarise in broad terms in this way:  about an hour before his arrest, he had made a telephone call to a younger man called "Squirrel Boy" asking him to fetch him some cigarettes, ( the appellant was able to point to a telephone call that fitted the time) and at just after 7.00, he received a call to come down to receive the delivery of cigarettes.  He said that is what he thought he was receiving in the plastic bag and that he knew nothing about the drugs contained in it. 

4.            As regards the drugs found in his house, his case was that they did not belong to him and that "Squirrel Boy", for domestic reasons, had been staying there and that the drugs belonged to him. 

5.            The appellant did not give evidence at trial.  He had, through his lawyers, contacted the police and said that the person called "Squirrel Boy" had been identified.  He was someone on remand at the Drug Addiction Treatment Centre at the time and his details were given to the police.  It was asserted that this man, named Cheng Chi-ming, was someone who was prepared to say that the drugs in the house were his and that the appellant knew nothing about the receipt of drugs in the plastic bag which he had handed over.  The police declined to investigate the man.  It appears they had legal advice. 

6.            The man was actually called into court at the trial by the defence.  He was not called to give evidence by the defence or by the prosecution.  Today it is urged before me that there is a reasonable doubt in this case and a number of matters are relied upon.  It is conceded by Mr Egan who appears for the appellant, that this is a rehearing and he is entitled to revisit the facts and, in effect, address me as he would have addressed the magistrate in his closing speech, and ask me to take a different view of the facts.  Of course, he is entitled to do that because the nature of these proceedings are that they are a rehearing. 

7.            Accordingly, two of the points that he has put before me fall by the wayside because they point to alleged mistakes or errors by the magistrate.  I hope they are mistakes I will not repeat.  I shall deal with them in a moment, and I shall deal with them fairly briefly in the circumstances. 

8.            I am alive to a line of argument that if it be that I relied upon the magistrate's assessment of witnesses, I must remember that if, in fact, he had made errors, those errors might have some impact on his assessment of credibility in the case and his assessment of the conduct of the police generally. 

9.            The first alleged error was that the magistrate relied upon registers which the security staff at the residential blocks had kept, and the point of their production was to demonstrate that there had not been a regular visitor who matched the description of "Squirrel Boy" at the appellant's home.  I am not going to rely on those registers and the reason for that is that the cross-examination demonstrated that, really, what they were doing was recording strangers and that if someone was regularly, say, living or staying in a flat at the premises, their name would not appear on the register.  That is the position that accords with common sense and some collective experience in court but whether I am right or wrong in that, I will not, in this case, rely on the registers to demonstrate an absence of "Squirrel Boy" from the relevant premises. 

10.           It was said that the magistrate took an incorrect point against the appellant because the appellant in what he said to the police had said that it was Chung Shiu-chai who had rung him that evening telling him to go downstairs and get the two packets of cigarettes.  And the magistrate, as it appears from page 12 of the statement of findings, thought Chung Shiu-chai was a different-named person from Cheng Chi-ming, the man produced in court whom the appellant was asserting was "Squirrel Boy" and he put that inconsistency into the scales when dealing with the appellant's case.  Mr Egan points out that Chung Shiu-chai - and it is confirmed by my interpreter in court - is merely the Cantonese for "Squirrel Boy".  Miss Chan appearing for the respondent to the appeal sought to argue that there had not been an error in this regard by the magistrate.  I found her argument difficult to follow.  I will proceed on the basis of error but be careful not to make the same error myself. 

11.           The real thrust of the appellant's case is this:  that there is a reasonable doubt here on the basis that the police had targeted the appellant, they wanted him at any price and they cheated in order to convict him.  They say that a motive for that arose out of the fact that the appellant shortly prior to the time in question, had been the boss of Club 348 on Nathan Road.  It is common ground that Club 348 was a notorious location and had a reputation for being connected to dangerous drugs. 

12.           What the appellant prays in aid in this regard is really two things:  firstly, a complaint that the police did not adequately investigate, or investigate at all, Cheng Chi-ming , once his details had been supplied to them, with the assertion that he was the man solely responsible for these crimes; and, secondly, that their explanation that the delivery man got away and could not be stopped, even though it was their intention to stop him, was an inadequate explanation which revealed the fact that they did not want to catch him. 

13.           Let me say it is quite clear, as Mr Egan asserts, that the police obviously regarded the appellant as a target because, on the day in question, some 20 OCTB officers were involved in the operation at the appellant's premises. 

14.           As regards the failure to investigate the claims made in respect of Cheng Chi-ming, I do not find that surprising.  There is no obligation on the police to investigate claims made by the defence in such a regard.  They had their case and they could leave it until trial but, obviously, in a case that has a background like this, there was always the possibility that claims made in respect of Cheng Chi-ming were fabricated ones designed to provide a false defence. 

15.           When one comes to look at the failure to apprehend the delivery man, it does look suspicious.  It looks as though it could have been the case, maybe, that the police had put him up to making a delivery of drugs to the appellant when that had not, in fact, been arranged for, in order falsely to frame the defendant and convict him of a crime of which he was innocent. 

16.           However, the evidence was that when the defendant received the bag, he opened it and looked in it for a second or so and that such casual observation would have revealed the drugs - a powder being visible through the transparent plastic wrappers. 

17.           It was suggested to the police officer that this was a dishonest embellishment but the fact is, the defendant by his election chose not to provide any evidence to the contrary and that is a matter of some significance. 

18.           It is also the case that the evidence reveals that the police were watching the premises from 4 o'clock that afternoon.  The phone call which the appellant points to as being the request for cigarettes only - and not cigarettes and dangerous drugs - occurred at just after 6.00 pm.  The actual delivery of the drugs occurred at 10 minutes past 7.  If it be that the delivery man was an agent of dishonest policeman, it meant that the inclusion of the drugs in an innocent delivery of cigarettes had to have been organised within that timeframe.  That consideration has to be seen also against the nature of the assertion that the appellant had chosen to provide himself with cigarettes in this way when, in fact, there were same already in his house, causing a delivery to be made by "Squirrel Boy" costing $128.00 in taxi fares from Kwun Tong.  It is an explanation that I judge to be a very thin one - very hard to believe. 

19.           If this was an operation designed by the police to trap the appellant and they had set it up to nab him before he could dispossess himself of the drugs or the like, then the presence of a similar drug in his premises at the time becomes relevant to the issue and does the appellant's case obvious damage.  Of course, thinking through what it means if the deliverer was delivering drugs for himself for some reason - a possible explanation that is relied up on - the same considerations of lack of realism apply.  What person wants to get drugs into the house a friend or acquaintance where he is staying by using an opportunity to deliver cigarettes to give the drugs to someone who is an innocent third party in the matter, hoping that he will, what, put them aside for him for later consumption?  The whole idea is unrealistic. 

20.           The explanation is one that I reject.  I simply do not believe it.  But, of course, it does not fall to be treated as if it was evidence that had been given from the witness-box after oath or affirmation which had been tested by cross-examination.  It is an unsworn assertion made some five hours after the event in question.  No adverse inference is to be drawn from the silence on arrest.  The point is that the explanation advanced some five hours later cannot claim the spontaneity that an immediate reaction would give.  If the appellant did not possess the drugs in his house and if he had not ordered the drugs to be delivered, then he had the opportunity to say so in evidence.  No adverse inference flows from his failure to do so but he is wrong to think that his out-of-court assertions, untested by cross-examination, can begin to carry the same weight as sworn evidence and, of course, one has to preface the comment I make now by saying there is no burden upon him to call any particular witnesses, but the fact was, he produced at the trial the man that he claims to be the sole criminal in the case who was willing to confess all, and he chose not to call him. 

21.           I have not had to rely in this case on the assessment of the magistrate in regard to credibility.  I am conscious though I have not seen the witnesses in question - but as Mr Egan asserts - any demeanour that would have been engaged in this case would have been that of experienced police officers who would not have been expected by their physical reaction to questions to have given much away.

22.           It comes to this:  in my judgment, there was a strong prima facie case met with an unsworn assertion or explanation that was inherently weak and there was no evidence to engage the strength of the prima facie case.  On the facts and material before me today, I am sure that these convictions were good ones.  I entertain no reasonable doubt in respect of either and, accordingly, it follows that the appeals against them are dismissed.