HKSAR v. TSE YU HIN

CACC 458/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 458 OF 2012

(ON APPEAL FROM DCCC 694 OF 2012)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  The applicant seeks leave to appeal against his conviction after trial by District Court Judge S. D’Almada Remedios on 7 November 2012 of a charge (charge 1) of unlawfully trafficking in a dangerous drug on 8 June 2012, namely 22.71 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant pleaded guilty to two charges of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232. The applicant was sentenced to 4½ years’ imprisonment in respect of charge 1.

THE TRIAL

2.  There was no dispute at trial that the applicant had been intercepted by police officers at about 21:45 at the gate of Lei Muk Shue Estate, Kwai Chung.  A little earlier WPC 6638 had become suspicious of the applicant and a second male as they approached a stationary taxi.  The two men responded, apparently having seen her male uniformed colleague, by putting their respective right hands into to their respective right trouser pocket and boarding the taxi hurriedly.  WPC 6638 contacted police officer colleagues and the taxi was intercepted by them at the gate of the Estate.  The two men were escorted by police officers to nearby Yeung Shue House.  There, PC 5473 told the applicant that he was suspected of being in possession of drugs and informed him that a search of his body was to be conducted.  In response, the applicant pushed PC 5473 in the chest and ran off.  PC 5626, Chan Ho Sang, gave chase shouting out that he was going to arrest the applicant for assaulting his colleague and ordering him to stop.  During the chase the applicant pushed away both PC 5473 and PC 5699 when they caught up with him.

3.  At issue in the trial was whether or not during the chase the applicant had removed a packet from his right trouser pocket and thrown it away.  There was no dispute that a re-sealable plastic bag containing two other re-sealable plastic bags, which contained the ketamine the subject of the charge, was found in a bush in the immediate vicinity of where the applicant had been restrained.

The prosecution case

4.  PC 5626 testified that immediately before he caught up with the applicant and forced him to the ground he saw the applicant removing a packet from his trouser pocket and throwing it away.  He said that he and his colleagues, PC 5699 and PC 5473, succeeded in handcuffing the applicant, after which he was taken back to the car park area.  Then, he returned to the place at which he had restrained the applicant to search for the packet that he had seen the applicant throw away.  Although he had used a torch in that search he was unsuccessful.  As a result, he had informed colleagues and a police officer with a police dog came to search the area.  PC 48800 testified that his police dog located the re-sealable plastic bag containing the ketamine in a bush.

Defence case

5.  The applicant did not give or call evidence in the defence case.

Reasons for verdict

6.  The judge identified as the primary issue in the trial whether or not PC 5626 had seen the applicant throwing away an object and, if so, was it the re-sealable plastic bag containing the ketamine which had been found by PC 48800.  She adumbrated a series of points made by Mr William Allan which he had submitted cast doubt on the testimony of PC 5626.  She acknowledged that the police party had left the place, at which the ketamine was subsequently located, unsecured for a short time whilst the applicant was taken to the car park area.  However, she determined that it was inherently unlikely that in that period of time some other person had left the ketamine in that place.

7.  The judge agreed with Mr Allan’s suggestion that it was remarkable that PC 5626 had not told his colleagues that he had seen the applicant throwing a packet away shortly before he was restrained, but she noted that PC 5626 had returned to the scene to conduct his own search immediately afterwards, his “clear actions spoke louder than his silence.”  She did not find it concerning that PC 5626 had been unsuccessful in his own search, noting that it was dark and the package had not been found in the open but in a bush.  She agreed that it was unusual for no photograph to be taken of the packet of ketamine in situ, but she observed that PC 5626 was not responsible for directing where photographs were to be taken.  She agreed that PC 5626’s description on the tamper proof bag of where it was that the ketamine had been found was generic rather than specific, namely “on a slope”, but determined that matter was of no significance.

8.  Finally, the judge noted that the applicant’s fingerprints had not been found on the re-sealable plastic bag containing the ketamine.  Of that, she said :

“ The fact that the defendant’s fingerprints were not found on the plastic bag does not denote or necessarily mean that the defendant did not throw, handle or touch the bag. The bag was taken out of the defendant’s pocket and thrown away quickly. It was found amongst the shrubs of the bush, inside a dirt hole. There may therefore be a number of reasons why the defendant’s fingerprints were not found on this plastic bag. The fact that the defendant’s fingerprints were not found on the plastic bag is not fatal to the prosecution case and is not conclusive evidence that he did not throw or touch the bag.”

9.  The judge said that it was “beyond comprehension” that, PC 48800 had commenced his search of the area with his police dog at the beginning of the route the applicant had taken during his flight, notwithstanding the fact that PC 5626 had told him where it was that he had seen the applicant throwing away the item during the chase.  She said that that was not logical, but that it did not impact on the credibility of PC 5626.

10.  The judge said that whilst PC 5626 and PC 48800 may not have followed the expected standard procedures in carrying out the investigation, nevertheless such “obvious flaws” did not undermine their credibility.  In the result, the judge determined that the witnesses called for the prosecution, including PC 5626, were “honest and reliable witnesses”.

11.  From the undisputed evidence that the applicant had pushed away the police officer, who told him that he wished to search him, together with the applicant’s flight and efforts to avoid being searched, the judge determined that the applicant wished to avoid being searched because he knew that he had dangerous drugs in his possession, which drugs “he had thrown away in an attempt to avoid detection of them by the police.”

12.  Noting that the applicant was possessed of the dangerous drugs whilst he was in the street at night in the company of others, and having regard to the quantity of the dangerous drugs and the fact that they were packed in 2 re-sealable packets of almost identical weight, the judge determined that the applicant was in possession of the dangerous drugs to supply them to others.

GROUNDS OF APPEAL AGAINST CONVICTION

13.  In the grounds of appeal against conviction advanced by Mr Allan it is submitted, first that the judge erred in law in determining she was satisfied that the applicant was guilty of unlawfully trafficking in the ketamine.  Secondly, it is submitted that the judge erred in law and/or speculated as to why the applicant’s fingerprints were not found on the re-sealable plastic bag containing the ketamine.  Thirdly, it was contended that having determined that there were “obvious flaws” in the conduct of the investigation by PC 5626 and PC 48800 it was unsafe of the judge to have relied on their testimony in convicting the applicant.

A CONSIDERATION OF THE SUBMISSIONS

14.  All of the submissions advanced by Mr Allan to this court were made to the judge at trial.  Notwithstanding, the obvious lack of merit in some of the submissions the judge condescended to dealing with each and every submission.

15.  Obviously, the fact that the applicant’s fingerprints were not found on the re-sealable packets containing the ketamine did not lead inevitably to the conclusion that he had not handled or touched those packets[1]. In stating that to be the case the judge was stating the obvious.  She was not speculating.

16.  Having carefully examined the various points made on behalf of the applicant by Mr Allan, the judge was entitled to determine that she accepted the evidence of PC 5626, in particular that he had seen the applicant throwing away an object, which she found was the packet of ketamine later located by PC 48800 in the vicinity of the area in which the applicant had been seen throwing the object earlier.

Conclusion

17.  We are satisfied that there is no merit whatsoever in the grounds of appeal against conviction advanced by Mr Allan.  Accordingly, the application for leave to appeal against conviction is refused.

[1]  HKSAR v Law Wing Hong (CACC 169/1998, unreported 11 November 1998)  Power V.P. “Where, however, there is no fingerprint evidence at all, it proves nothing either way”．