R. v. CHAN KIN HUNG

IN THE COURT OF APPEAL

1995, No. 575
(Criminal)

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J U D G M E N T

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Leong J. (giving the judgment of the Court):

1. On 26th July 1995, the Applicant was convicted, in the District Court before Deputy Judge A. Chan, of trafficking in a dangerous drug. The amount involved was 50.70 grammes of a mixture containing 19.11 grammes of salts of esters of morphine. He was sentenced to 5-½ years imprisonment.

2. He now applies for leave to appeal against conviction.

3. The ground of appeal is that the conviction is unsafe and unsatisfactory.

4. The evidence against him was simple. Two police officers, PW1 and PW2, from the Wanchai Police Station were on plainclothes duty. PW1 mounted an observation post in the carpark at Hopewell Centre, watching through binoculars activities down in the street while the other officer was in the street outside the Tung Sum Restaurant which was opposite the carpark.

5. PW1 observed the Applicant hand over something to a man in grey in exchange for some papers which he believed to be money. The man in grey then disappeared. He informed PW2 through the beat radio of such activities and at the same time he came down from his observation post, went up to the Applicant and intercepted him. He searched the Applicant. He found in the Applicant's waist bag a sum of $120 and 126 pallets containing in total the amount of dangerous drugs in question. In the meantime, PW2, having received the message, had arrived at the scene and he witnessed the search of the Applicant.

6. There were inconsistencies in the evidence of PW1, significantly his denial of having spoken to PW2 before interviewing the Applicant at the station which was contradicted by his note book entry. His evidence also contradicted the evidence of PW2 on the aspect of the time gap between the interception of the Applicant and the arrival of PW2 and the manner of searching the Applicant.

7. The Applicant did not give evidence.

8. The judge recognised these inconsistencies and found them to be important inconsistencies. He found that because of such weaknesses, both PW1 and PW2 could be attacked as unreliable. Further, he also found them to have unreliable recollections as to details and sequence of events. Later in his judgment in relation to the entry in PW1's note book, he said "However, I am again left with the problem that a Crown witness had been caught out for being either unreliable and/or dishonest."

9. In conclusion, he warned himself of the fact that both witnesses were shown to be dishonest and/or unreliable and the danger that they might not respect the truth. Nevertheless, he accepted their evidence that the drugs were found in the Applicant's waist bag.

10. His findings on the credibility and reliability of the two witnesses can hardly be regarded as consistent with his acceptance of their evidence that the drugs were found on the Applicant.

11. In the latter part of his judgment, the judge after reminding himself that the burden of proof is on the Crown, said "I cannot see why PW2 or PW1 would have picked up an innocent person and framed him up with an offence of considerable seriousness. What is the motive for the frame up? ... Further, a substantial amount of drugs had been seized. Where did they come from?"

12. The effect of this is that the judge adopted an approach requiring the Applicant to explain where the drugs came from if they did not come from him. This is reversing the burden of proof and is wrong.

13. Mr. A. Bruce, for the Crown, fairly and rightly indicated to us that the Crown would have difficulty to support the conviction.

14. We think, in the circumstances of the case, it would not be safe to allow this conviction to stand.

15. The application for leave to appeal against conviction is granted. Appeal allowed. The conviction is quashed and the sentence set aside.