HKSAR v. LE VAN PHAI

HCMA 436/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF APPEAL

MAGISTRACY CRIMINAL APPEAL No. 436 OF 1998

(ON APPEAL FROM TMC 3910 OF 1997)

___________

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

J U D G M E N T

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

Chan, CJHC:

1. The appellant was convicted after trial in the Tuen Mun Magistracy of one count of trafficking in dangerous drugs. He was sentenced to imprisonment for two years. He now appeals against both conviction and sentence.

2. The prosecution's case against him is this. On 14th October 1997, the police conducted an anti-drug operation at the Pillar Point Detention Centre for Refugees. PW1 was an undercover police officer. He posed as a drug addict hanging around at the gate of the Centre and pretended to be wanting to buy drugs. At about 7:30 p.m., the appellant approached PW1 and asked whether PW1 wanted to get something. PW1 thereupon answered that he did. There was then a discussion with regard to the price. Finally, PW1 agreed to pay $110 to purchase the goods. The appellant then left for a while. Upon return, he handed a portion of a drinking straw containing the drugs found in the present case to PW1. PW1 then handed over $120 to the appellant. The money in the form of a $100 note and a $20 note was previously given to PW1 by his inspector. According to PW1, the appellant gave him a change of ten dollars, but, he could not remember the sort of denomination he was given: whether it was a ten dollar coin or other types of coins. After the transaction, PW1 gave a signal to officers at a nearby observation post, which in turn notified officers in another observation post near the place of transaction. Upon receiving such signal, PW3 another police officer in plain clothes approached and stopped the appellant, making enquiries of his particulars. The details of the appellant's name, refugee number and address were taken down by PW3. The appellant was allowed to go. The witnesses explained that the police did not arrest the appellant immediately after the transaction because they wanted to get more information about the whole operation of drug trafficking in the Refugee Centre. They wanted to arrest more people involved in this trade. If the appellant was arrested immediately, then it would arouse the suspicion of other drug traffickers in the area or in the same syndicate. So no arrest was made on that day. Two days later, on 16th October, according to the information gathered by the police including the information obtained by PW3 on 14th October, a series of arrest were conducted. The police went to the address given by the appellant. It would seem that the address was incomplete. Hence the police officers laid in ambush nearby in a small park and waited for the appellant. Finally, sometime after 11 p.m., when the appellant appeared, the police arrested him.

3. The dangerous drugs sold by the applicant to the undercover police officer PW1 and packed in the plastic straw contained 0.23 gram of a mixture containing 0.20 gram of heroin hydrochloride.

4. The appellant gave evidence in court. His defence was mainly that of alibi. He said that on 14th October, at the time of the alleged offence, he was not at the place of the crime. He said that on that night, he returned from work, and stayed at home with a friend called "Ah Fa" and another Vietnamese person called Pham Thanh Duong. They had a few drinks. Later, Ah Fa suggested to go out to buy things. So they went out together, but finally could not get anything. Between 8:00 and 9:00 p.m., they went home separately. The appellant denied that he had ever sold any drug to PW1. He even denied that he had been stopped by PW3. He said that he was not at the small path when the police arrested him. He called Mr Pham, the Vietnamese friend, to give evidence on his behalf. This witness tended to support his alibi.

5. The trial magistrate reviewed the evidence. He reminded himself of the burden of proof, particularly that regarding the issue of alibi. That is to say: it is not for the appellant to prove on the balance of probability that he had an alibi. It is for the prosecution to disprove alibi beyond reasonable doubt. The magistrate found that there were discrepancies in the evidence of the appellant and that of his alibi witness. He rejected their evidence. He went on to consider whether the prosecution had proved its case beyond reasonable doubt. He also reminded himself of the principles in Turnbull. It would seem that the evidence of PW1 is quite clear. According to him, it was the appellant who sold him the drugs. He was able to recognize the appellant as the one who sold him the dangerous drugs. As regard to PW3, the magistrate believed that he did stop the appellant. The information he gathered from the person he stopped tallied with the details of the appellant. So it was the appellant who was stopped by PW3 immediately after the transaction upon receiving the signal from PW1. There was therefore no question of any misidentification.

6. At the appeal hearing today, the appellant maintained his innocence. He queried why the police did not have any video or photograph showing the transaction. I think there may be many reasons for this. It would be much better if the whole transaction was recorded on video. The explanation was that there was not sufficient facility at the time. At that time of the day, photography would probably be very risky as it might alert the drug traffickers and reveal the identity of the police officer PW1. Whether such explanation was reasonable or not is another matter. The effect is that the court must be satisfied on the evidence of PW1 and PW3 that it was the appellant who sold the dangerous drug in question to PW1. The trial magistrate was so satisfied. I see no reason to say he was wrong. Another matter the appellant raised is that the officer was not even able to tell what currency was given in exchange. I should think that this is such a trivial matter which has absolutely no effect on the evidence of PW1. He said he could not remember the sort of coins he received as change. As a matter of fact, PW3 did find, upon a body search on the appellant, one hundred and twenty dollars, which was apparently the money given to the appellant by PW1 during the transaction.

7. In these circumstances, there is nothing to persuade me that the conviction was either unsafe or unsatisfactory. The appeal is therefore dismissed.

[Submission on sentence]

8. The appellant was sentenced to two years imprisonment. According to the quantity of drugs involved, the sentence would be two years or more. The magistrate had correctly applied the guideline in R. v. Lau Tak-ming & Others [1990] HKLR370. No discount can be given for a guilty plea since he was convicted after trial. No discount can be given for his record since the appellant has a record including one previous conviction related to drugs. In these circumstances, the sentence is neither manifestly excessive or wrong in principle. The appeal against sentence is also dismissed.