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HCMA000785/1991
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 785 OF 1991
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BETWEEN
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THE QUEEN
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Respondent
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CHAN YIU KEI |
Appellant |
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Coram: Hon. Hooper, J. in Court
Date of hearing: 2 October 1991
Date of delivery of judgment: 17 October 1991
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JUDGMENT
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1. On the 27th June 1991, the appellant was convicted at the South Kowloon Magistracy of two offences under the Dangerous Drugs Ordinance. The A charge alleged trafficking in dangerous. drugs whilst the B charge alleged possession of dangerous drugs for the purposes of unlawful trafficking. Both offences were alleged to have been committed on the 7th November 1990 at No. 344 Shanghai Street, 1st Floor, Kowloon.
2. The prosecution case was summarised in the Statement of Findings as follows:-
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"At around 8.55 p.m. on the 7th November, 1990, a team of police officers at Tsim Sha Tsui Police Station were briefed to carry out dangerous drugs operation at premises at 344 Shanghai Street. They were given A description of a wanted person. The description of that person was adduced in cross-examination as being aged about 20, tattooed, strongly built, naked from waist-up. Amongst the police officers who were briefed were PC 45291, Shing Wing-keung (PW1) and PC 45092, Wong Kai-man (PW2). In the course of the briefing PW1 was given $350 comprising 3 x $100 notes and 5 x $10 notes, the serial numbers of which were noted. PW1 gave evidence to the effect that after the briefing the team including himself went by police vehicle to the junction of Waterloo Road and Shanghai Street. At 9.22 p.m. PWl went into the premises at 344 Shanghai Street with the intention of purchasing dangerous drugs there with the $350 he had been given for this purpose. PW1 said that he entered a room on the first floor (See sketch plan ex. D1) where he saw a number of men and seated on the bed facing the entrance he saw the Appellant wearing no upper garment and he had tattoos on his body. PWl said he approached the Appellant who looked at him and said 'Are you coming to collect something' and when he repied 'Yes' the Appellant asked him 'How much is required' PWl said he asked for 'half a phial' and the Appellant then said '$350'. PW1 then took the $350 which he had eariler been given in the Police Station and.handed it to the Appellant who put it in the left front pocket of his shorts. As he was doing that the Appellant stood up and took out a red box (Ex. P1, an enamelled 'biscuit-tin') which had been covered by a quilt from the upper bunk of the bed. PW1 said that the Appellant opened the box in front of him and took out a phial which contained suspected dangerous drugs and gave it to him. When the box was opened, PW1 said he saw that in addition to the phial the box contained a plastic .bottle and a plastic bag both of which contained suspected dangerous drugs. The Appellant then closed the box and replaced it on the upper bunk under the quilt.
PW1 said that he was just about to leave when PC 45092 (PW2) and PC 2856 (PW3) appeared.next to him. PWl told PW2 that had just transpired between himself and the Appellant and PW2 then produced his warrant card and revealed his identity to the Appellant. After that PW2 searched the upper bunk and found the red box, he opened the box and said to the Appellant 'Are these yours?'. The Appellant did not say anything and PW2 declared arrest on him for trafficking indangerous drugs and for possession of dangerous drugs for the purpose of unlawful trafficking. After his arrest PW1 that the Appellant said If I had known he was a police officer I would not have sold to him. I just sell those dangerous drugs to drug addicts to earn some money. The Appellant was searched at the scene by PW2 who found the $350 from the left front pocket of the Appellant's shorts. The party eventually returned to Yaumatei Police Station where at 2 a.m. inside the"Report Room the phial which was purchased by PWl from the Appellant was placed in a Government envelope and sealed and handed to the DDPC for eventual analysis by the Government Chemist. PWl was cross-examined. On further cross-examination by Defence CFounsel after PW2 had commenced his evidence PW1 denied" that he had had any discussion with PW2 back at the police station and that a conversation to the effect that he had said to PW2 'You purchase or purchase' to which PW2 replied 'You purchase I arrest' had not taken place.
PW2 gave a like account of the events which took place in the room on the first floor of the premises at 344 Shanghai Street as that given by PW1. He said that he seized the "contents of the red box and at 2.03 a.m. he handed them beer to the DDPC when they were sealed in Government envelope for subsequent analysis by the Government Chemist. PW2 was cross-examined at some length about the entries or lack of them in his notebook and in particular about an incident which it was pu to him occurred at the time a post recorded caution statement was made, when the Appellant wished to record that he had gone to the premises to buy drugs and PW2 had prevented him"and. instructed him to write that he had nothing to say. PW2 denied that anything of the kind had happened and that the Appellant had said that he had wrongly written the character 'Yau' and asked what he should do to which PW2 said he replied that if it was wrong the Appellant could cross it out and put down his signature, which the Appellant then did.
PW3 was tendered for cross-examination.
The chain of evidence relating to the transmission of the drugs seized by PW1 and PW2 and handed to the DDPC from the DDPC to the Government Chemist and the Court was admitted pursuant to Section 65C of the Criminal Procedure Ordinance, Cap. 221. The Government Chemists Certificates were produced as Ex. P7 and Ex. P8. The Certificates showed the quantities of salts of esters of morphine as set out in the charges."
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The learned magistrate then se.t out the defence case as follows:- |
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"The Appellant elected to give evidence. He said that he lived with his parents in Ferry Street and worked for his elder brother as a painting worker. He was aged 24 and single. His account of the events of the evening in question was that he had recently become a drug addict and obtained drugs from a person called 'Ah Ngau'. at, the street sleepers home at 344 Shanghai Street. On the 7th November, 1990, he finished work at 6.30 p.m. and he described his movements from that time, including a visit to his doctor for treatment of his asthma, he went to 344 Shanghai Street arriving there just before the police. When he entered the room on the first floor he saw 'Ah Ngau' on a bed on the left hand side listening to the horse racing with other persons in the position marked on Ex. D1. He described 'Ah Ngau' who also had tattoos on his body as being rather muscular (The Appellant himself was not of strong build). The Appellant said that when 'Ah Ngau' saw him he told him to sit down.on the bed and wait for him so he went to the bed indicated from where 'Ah Ngau' had given him drugs on previous occasions and sat down. As it was stuffy in the room he took off his upper garment and as he was turning round three people rushed in saying 'Police. Don't move.' One of these people went to 'Ah Ngau', another went to another bed and the wait for him so he went to the bed indicated from where 'Ah Ngau' had given him drugs on previous occasions and sat down. As it was stuffy in the room he took off his upper garment and as he was turning round three people rushed in saying 'Police. Don't move.' One of these people went to 'Ah Ngau', another went to another bed and the third, who the Appellant said was PW2, went to him. The Appellant said that PW2 searched him and found only his wallet and money on him. Other officers arrived including an Inspector and a further search of the room was carried out. The Appellant said that PW2 searched the upper bunk of the bed behind him and found the red tin box (Ex. P1). PW2 opened the box in front of the Appellant and finding the suspected dangerous drugs inside asked the Appellant if they were his and the Appellant said that they were not his. It was then, the Appellant said, that PW1 approached and both officers then took him into the corridor where he was handcuffed. He said that he told PW1 that the drugs were not his and PW1 told him that he was only suspected of possessing dangerous drugs for the purpose of trafficking and he had to be taken back for enquiries. He denied that he had made any admissions to PW1 and PW1 as alleged. He was eventually placed in the cells at Yaumatei Police Station and as PW1 and PW2 were leading the Appellant said that heard PW1 say to PW2 'who bought?' to which PW2 replied 'You bought and I areested' and PW1 said 'OK'. The Appellantt said that he was then taken for a home search and after that returned to the Police Station where PW2 took him to a room and recorded something in his notebook. PW2 told him that it .was a record of the house search when nothing was found and if he agreed to write, 'agree', so the Appellant said that he did so and signed. PW1 then continued to write for a while and then came over to the Appellant and showed him the book and said that the paragraph says he, the Appellant, is charged with possession of dangerous drugs for the write down that he had nothing to say. The Appellant intended to say that the drugs were not his and he just went there to buy drugs and so he put the word 'Have' whereupon PW2 shouted to him to stop and took away. the book asking the "Appellant what he meant by doing that. At this juncture there was a plainclothes policeman at the doorway who intervened and assaulted the Appellant threatening him that he had better be obedient or he would not be treated so well. Then, the Appellant said, PW2 came over and told him that if he denied the offence he should not tell him but tell the Court. The Appellant said that he accordingly deleted the word 'Have' and put down his signature again and wrote 'Nothing to say'. The Appellant said that he had never seen the police 'marked money' until it was produced in Court. The Appellant was cross-examined.
The Appellant was allowed to re-open his-case to call his father, Chan Yau, to give character evidence. He was not cross-examined."
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In the final paragraph of his Statment of Findings, the learned magistrate set out the way in which he reached the decision as follows:-
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"I considered the evidence of the witnesses, including that of the Appellant and his father,and the way in which they gave their evidence.When considering the evidence of PW1 and PW2 I had particular regard to the timing and circumstances of the 'deal' between PW1 and the Appellant including the absence of any negotiation concerning the price and the price being the exact amount PW1 had been given for the purpose; I also considered the alleged improprieties of PW2 in the making of the post record 'Caution statement'. As far as PW1's evidence was concerned I found nothing inherently improbable in his description of events and I was satisfied that the amount of money, possessed by PW1 and the price demanded by the Appellant was purely coincidental. No doubt if the Appellant had asked a higher price there would have been negotiations.With regard to the 'caution statement', when PW2's attention was first drawn in cross-examination to the crossed out "Yau' I noted that he seemed slightly puzzled at the question but not at all taken aback as one would expect as if he had something to hide, particularly so as there was no voir dire and he would not have been prepared for ''such a line of cross-examination. He responded to defence Counsel's questions with every appearance of frankness and I was satisfied that there had been no impropriety on his part. With regard to the Appellant's evidence I had regard to his general good character as described by his father and also to the fact that he was not accustomed to giving evidence in court. I found him to be a far from convincing witness and his account of the evening's events had every appearance of having been concoted so as to open all possible defences from 'framing' through mistaken identity to alibi. I was satisfied that PW1 and PW2 were witnesses of truth and had given an accurate Account of the sale by the Appellant of the drugs to PW1 and I so found. I was further satisfied that the drugs were taken by the Appellant from the red tin box and the drugs remaining in the box were kept by the Appellant for the same purpose, i.e. for sale. I was satisfied that the Appellant had been caught 'red handed' and given the circumstances that he had handled the red tin box in front of PW1 I was not at all surprised that the box was not tested for fingerprints. I was satisfied beyond reasonable doubt that the Appellant had committed the offences as alleged and I accordingly found him guilty of the two charges of trafficking in dangerous drugs and possession of dangerous drugs for the purpose of unlawful trafficking as charged."
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3. Mr Tolliday-Wright who represents the appellant on this appeal submits that the appeal should be allowed on two main grounds.
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(a) |
that there was a material irregularity in the trial, and
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(b)
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that the verdict was" unsafe' and/or unsatisfactory and in view of all the evidence and circumstances, there is left a lurking doubt as to the Appellant's guilt. |
4. In relation to the first ground, it is his contention that under all the circumstances it was unfair of the Crown to have adduced evidence of a verbal admission which had been later reduced into writing in the form of a post recorded notebook entry, without seeking to produce such-written document. Secondly, that the effect of such tactics was "to steal the defence's thunder" and prevent evidential matters coming to the attention of the Court which supported the defence in that the appealant had in fact tried to write down an explanation in the notebook of PW2. Thirdly, he argues that for the defence to have asked for the production of the confession as a credibility tool against the Crown witnesses could have prejudiced the appellant and fourthly, that the learned trial magistrate erred in giving any weight to such admission, in particular, as there was no evidence, it had been taken in accordance with the Judges Rules. It had hot been reduced into writing, read over to and signed by the person who allegedly made it, nor had the appellant, before he was questioned at the scene as alleged been properly cautioned'
5. Mr Tolliday-Wright submits that the Crown adopted a practice which has become a common practice in the magistrates court whereby the Crown seeks to tender in evidence merely the verbal statement made by the defendant at the scene without attempting to tender the post-record made later back at the police station which is signed by the appellant. Mr Tolliday-Wright argues that it is not proper for the Crown to put in the verbal admission without putting in the written statement (or post-record).
6. I can see nothing wrong with the practice adopted by the Crown of merely tendering the "verbals" made by the defendant, without seeking to tender the later post record of that statement in the police officer's notebook signed by the appellant. There were in effect two alleged statements - one the verbal one at the scene and, two the written confirmation by the appellant of the police record relating to what had happened at the time of arrest. Had the appellant thought that there was any mileage to be gained from the magistrate seeing the written statement, there was nothing to prevent the defence asking for that document to be exhibited at the trial, either by a prosecution witness or failing that, by the appellant himself. There was no voir dire held in this case because there was a straight issue of fact between the prosecution witnesses and.the appellant as to whether the appellant did make any admission at the scene of arrest. The Crown case depended upon whether the magistrate believed the prosecution witnesses and was satisfied, on their evidence, as to,the defendant's guilt beyond reasonable doubt. In this case, he was so satisfied. In my judgment, it was not improper for the Crown to decide not to tender the alleged written statement subsequently made back at the police station. The first ground of appeal fails.
7. The second ground of appeal focuses on a number of matters which the defence say throw suspicion upon the evidence of the prosecution witnesses. Some of them were referred to by Mr Tolliday-Wright in his submission to the court and some have been referred to by the magistrate in his statement of findings. However, looking at the various points listed by the appellant in his second ground of appeal, I cannot say that either viewed separately or collectively, they make the convictions unsafe or unsatisfactory.
8. This was really a straightforward case. If the prosecution witnesses were believed, then the magistrate was bound to convict the appellant on both charges. The magistrate had the advantage of seeing these witnesses giving their evidence and seeing the appellant giving his evidence, and I cannot say that he reached the wrong conclusions on the facts.In the circumstances, the appeals against conviction are dismissed.
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(N.B. Hooper)
Judge of the High Court
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Representation:
Mr S. Bailey( Crown Counsel) for Crown
Mr Tolliday-Wright inst'd by M/s. Raymond Tang & Co. for Appellant
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