HKSAR v. WONG KWOK LEUNG

HCMA325/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.325 OF 2000

(On Appeal from ESCC 159 OF 2000)

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

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

J U D G M E N T

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

1. The appellant was convicted of the offence of possession of a dangerous drug by Mr I. Candy at Eastern Magistracy on 16 February 2000, and on 1 March 2000, he was sentenced to 9 months' imprisonment.

2. He filed notices of appeal against both conviction and sentence, but on the day of the hearing of the appeal, Mr Delaney, his counsel, informed the court that the appeal against sentence was abandoned and he only proceeded with the appeal against conviction.

The prosecution evidence

3. The prosecution's case against the appellant consisted of the evidence by two police officers. The first police officer ("PW1") was PC58139 who gave evidence that on 9 December 1999, he and his colleague PC52938 patrolled to the Southorn Playground near Johnston Road, Wan Chai at about 10:43 a.m. They entered the playground from the main entrance at Johnston Road. Then they walked to the area where people played chess. From a distance of about 3-4 metres, PW1 saw the appellant who was then sitting on a flower bed, holding a baby with his right hand. At the time the two police officers were in uniform. PW1 testified that when the appellant saw him, he immediately lowered his head. PW1 saw him put his left hand to his back and his hand was held down. When he was doing that, a white pellet fell to the ground near to the appellant's feet. PW1 went over and picked up the pellet to see what it was. He asked the appellant what it was. The appellant did not say anything. Then PW1 saw that the pellet was actually a segment of straw in blue and white colour with some powder-like substance inside. The two ends of the straw were sealed by burning. PW1 suspected that the straw contained dangerous drugs, so he declared arrest of the appellant and cautioned him. The appellant did not say anything. Later, at 10:55 a.m., the appellant, together with his child were brought back to Wan Chai Police Station.

4. Under cross-examination, PW1 agreed that there were many people at the scene. He agreed that where the appellant was sitting was a waste paper bin, but he denied that the waste paper bin was between himself and the appellant. He denied that he was unable to see the appellant's left hand.

5. PW1 was recalled for further cross-examination when he agreed that at the police station he was in a room with Station Sergeant Wong and the appellant. In the room, Station Sergeant Wong asked him (PW1) where he had found the plastic straw exhibit. He agreed that Station Sergeant Wong did ask him to clarify the position where the exhibit was found. He said that the Station Sergeant asked him where he found the exhibit and he told him that the exhibit was found on the floor of the flower bed. The Station Sergeant then asked him whether it was in the flower bed or on the floor. PW1 then told the Station Sergeant that actually the flower bed was connected to the floor.

6. The next witness called by the prosecution was the Station Sergeant whose full name was Wong Wai Keung ("PW2"). He confirmed that he was in a room with PW1 and the appellant in Wai Chai Police Station in the morning of 9 December 1999. He confirmed that he asked PW1 where the exhibit was found. He confirmed that PW1 told him that the exhibit had been found in a flower bed. He said that he then asked the appellant whether that was correct and the appellant said that the allegation was that it had been found on the floor. He agreed that he then pointed this out to PW1, but he disagreed that PW1 changed his evidence. He said that he (PW1) only clarified the matter for him, the Station Sergeant.

The defence evidence

7. The appellant gave evidence that he was in the playground with his son on the day in question. While they were inside the park, a friend asked him to join him and he sat down beside his friend. After he sat down, he used his left hand to hold his son, and his right hand held a newspaper which was inside a bag. While he was sitting there, about six to seven police officers came from behind and they asked him and his friend to go out to the area where people played chess. He was asked to show his identity card. A police officer handed over the identity card to another police officer and then conducted a body search on him. The police officer did not find anything and then searched his son. Then the police officer talked to another sergeant and then took him and his son to the area of the staircase of the playground. They stood there for a while and then a sergeant came over and said that they had picked up something from the ground and the appellant's friend had told them that the item belonged to him (the appellant). The sergeant did not say what the item was. The appellant asked the sergeant to take him to see his friend to ask his friend about that, but the sergeant did not do so. After that, they were taken back to the police station.

8. The appellant alleged that in the police station a sergeant asked the police officer what the matter was. The police officer said that he (the appellant) had dropped something at the flower bed and he (the police officer) picked it up. Later on, after the appellant had signed the cautioned statement, the Station Sergeant, Mr Wong, came in and asked PW1 where he had picked up the exhibit. The Station Sergeant also asked the appellant where the exhibit was supposed to have been found. The appellant said that the police officer said it was picked up from the ground. The Station Sergeant then again asked PW1 where he picked up the article from and PW1 answered "At the flower bed". The appellant alleged that PW1 then changed his evidence and said that the article was picked up from the floor next to the flower bed.

9. The appellant called a witness, Mr Cheung Ngau Chai, who gave evidence that on the morning in question he was watching people playing chess at about 10 a.m. He saw the appellant at the playground and the appellant was carrying a child. He said the appellant sat there talking with another person and the child was on his knee. He said that the appellant held the child with his left arm and was sitting on the cement ledge. He saw police officers come in from the entrance and they asked the appellant and his friend next to him to stand up. He did not see the policemen pick anything up from the ground at any time. The appellant and his child were searched. During the whole of this time, he did not see the appellant throw anything on the ground.

The verdict

10. Immediately after the defence's final address, the magistrate gave his oral reasons for his verdict. He mentioned that there were alleged discrepancies in the evidence of the two prosecution witnesses and then said that PW1 had clarified the manner in which the conversation between them transpired and the magistrate was satisfied that there was no discrepancy between PW1 and PW2 as to the conversation at the police station between them. He said there might have been a misunderstanding by the sergeant of what the evidence of PW1 was, but that was clarified and there was no confusion about where the police officer told the sergeant he had found the straw. The magistrate said that if the sergeant understood at first that the officer's evidence was that he had found a straw packet in the flower bed, then the sergeant was mistaken. The magistrate said he was satisfied that what PW1 told the sergeant was that he had found a straw packet on the ground at the flower bed, meaning on the ground near or close to the flower bed. That did not conflict with PW1's own evidence as to where he found the straw packet.

11. He summarised the evidence of the defence by saying that the evidence of the appellant and his witness was effectively that the straw packet was found somewhere on the ground, not in the presence of the appellant, and that the appellant was merely fitted up or framed with possession of it. He said he did not believe that evidence and he did not accept it. He said that he was satisfied that neither PW1 nor PW2 had invented or exaggerated his evidence. And he was satisfied that he could rely on the prosecution witnesses and in particular PW1 as a credible witness. He was satisfied beyond reasonable doubt that PW1 was in a position to see, and did actually see, what he said he saw. The magistrate said he was satisfied and found as a fact that the appellant did, upon seeing the officer, move his hand to drop the item which fell to the ground which was the straw packet.

Grounds of appeal

12. The main ground of appeal was that the conviction was unsafe and unsatisfactory because :

(1) The appellant gave evidence contrary to the prosecution witnesses and;

(2) The appellant called a witness "whose evidence largely supported the defendant's account of what took place at the playground" and;

(3) The learned trial magistrate dismissed the defendant's and his witness' evidence in one sentence without giving any separate consideration for either witness or reasons for not believing such evidence.

13. The main thrust of counsel's submission was that the magistrate in his Statement of Findings, prepared 28 days after the sentence, while he was going through the defence evidence, had referred to a sergeant at the scene of the arrest as PW2. This clearly was an error because PW2 clearly was never at the scene of the arrest.

14. However, in my judgment, this was not a matter of great moment. The reference to the sergeant at the scene of the arrest was in the context of the magistrate going through the defence evidence. In the Statement of Findings, after the defence evidence was gone through, the magistrate then said that he found PW1 and PW2 to be credible witnesses which was consistent with what the magistrate had said when he gave his oral reasons for the verdict. In the Statement of Findings, the magistrate then said that he did not believe the evidence of the appellant nor that of the defence witness. The complaint by counsel was that the credibility of PW2 was not a matter which supported the conviction because it was almost immaterial. However, the magistrate was obliged to make a finding about the credibility of PW2 insofar as he had to resolve the question of whether PW1, at the police station, had changed his evidence and whether the appellant's version of what happened at the police station was able to raise any doubt in the magistrate's mind. Inasmuch as the magistrate accepted that PW2 was a credible witness, he accepted that what happened at the police station was as PW2 narrated in his evidence. This was also consistent with his rejection of the appellant's evidence, and in particular the appellant's evidence of what happened in the police station.

15. The other complaint by counsel was that because the magistrate found that the appellant and his witness supported each other, this was all the more reason for the magistrate to give reasons to say why that evidence is not credible.

16. In R v. Sheik Abdul Rahman Bux & Others [1989] 1 HKLR 1, the Court of Appeal quoted from and approved the judgment of Blair-Kerr J. in R v. Low [1961] HKLR 13 at p.82 :

" ... Similarly if he [a District Judge] chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion."

17. The instant case was a fairly simple one. The magistrate had accepted the evidence of PW1. He was entitled to reject the evidence of the appellant and his witness. It is not always easy for a tribunal of fact to enumerate the reasons why he disbelieves a particular witness. It is only when there is evidence before the court which, on its face, gives rise to difficulties for the prosecution or important contradictions that the tribunal has to either deal with the difficulties or the contradictions or at least show that he was aware of those difficulties and has endeavoured to resolve them.

18. In the instant case, there are no such difficulties raised by the evidence. I have gone through the whole of the evidence adduced at the trial and I am satisfied that the conviction is neither unsafe nor unsatisfactory. I can find no matters which raise a lurking doubt in my mind about the correctness of the conviction. The appeal against conviction is therefore dismissed.