THE QUEEN v. TSO MAN KIN

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.P.:

1. The Applicant, Tso Man Kin, was convicted after trial before Judge Corcoran in the District Court for the offence of being in possession of dangerous drugs for the purpose of unlawful trafficking.

2. The particulars of the charge related to 12th december 1987 and the junction of Tung Chau Street and Nam Cheong Street, Kowloon. It was alleged that the Applicant had in his possession 81.18 grammes of a mixture containing 5.03 grammes of salts of esters of morphine.

3. It was the prosecution's case that a police surveillance party had taken up position near that junction. Some of the party were in a car, some in a house nearby and others generally in the vicinity. They saw the Applicant in Nam Cheong Street walking by himself. He was stopped by members of the party They identified themselves and told him that he was suspected of being in possession of dangerous drugs. He was searched by the first prosecution witness and it was that witness's evidence that in the Applicant's jacket pockets were found two polythene bags and a pink bag containing eight polythene bags - the former in the upper left inner pocket, the latter in the lower right outer pocket. It was said that when asked what they contained the Applicant replied "white powder".

4. The Applicant was arrested. He was taken to the police station and, in the normal manner, the drugs were placed in a sealed envelope and the Applicant appended his signature thereto. In the course of time they were taken to and recovered from the Government Chemist and his analysis showed the quantity of the drugs to be that set out in the charge.

5. As foreshadowed in the cross-examination of police witnesses, the defence was that of a frame up by the police. Details of where various members of the police party were at various times were questioned.

6. In his evidence, the Applicant suggested that PW1 was not there at all; that he had been arrested by another police officer who had not given evidence. The framing, it would appear, was as a result of his failure to give information which a sergeant had expected him to give - they having had a previous encounter. It was said that on that first encounter the Applicant bad been provided with $300 bail money by the sergeant. These suggestions were denied. He has suggested that the frame up was enabled to take place because the police conveniently found a red bag in the neighbourhood and then attached it to the person of the Applicant. Further, that while he was being taken to the police station, two other separate packets were shown to him. He denied having anything to do with the drugs.

7. The trial judge in his assessment of the prosecution witnesses found them to be truthful. He considered the evidence of the Applicant and he was unable to come to the same conclusion with respect to him.

8. Before us today, the Applicant has accused the trial judge of bias because of his assessment and his consequent belief in the evidence of the prosecution. He has suggested there were various discrepancies between the evidence of one police officer and that of another which were not properly considered by the trial judge. He has suggested that there was reference by one of the police officer to his being a "target person". There was no reliance placed upon this by the trial judge. There is no reference to it in the Reasons for Verdict. In any event, that issue was raised in the course of cross-examination of the prosecution witnesses and was not something which arose from the direct evidence of those witnesses.

9. The trial judge was the seeing and the hearing judge and he was entitled, on the evidence before him, to come to the conclusion he did as to the credibility of the police officers. The majority of the issues raised today before us were also raised and considered at the trial. Nothing that the Applicant had said to us, and we have seen the transcript of the evidence of the police witnesses at trial, has given us cause for concern as to the safety of this conviction.

10. In those circumstances, the application for leave to appeal against conviction is dismissed.