THE QUEEN v. PANG KAM WAH

IN THE HIGH COURT

1992, No. 832
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. The appellant, PANG Kam-wah was convicted on 9 September 1992 at the Kwun Tong Magistracy of two charges: (1) Trafficking in dangerous drugs, the offence having occurred on 24 June 1992 at the ground floor of Block 40 Sau Mau Ping Estate. (2) On the same day and at the same place being in possession of dangerous drugs, namely one packet containing salts of esters of morphine, being a mixture weighing 0.73 gm containing 0.37 gm of salts of esters of morphine. The appellant was the 1st defendant at the trial. There was a 2nd defendant who was charged with possession of dangerous drugs at the same time and place. When he was brought before the Magistrate on 9 September 1992 he pleaded guilty and was convicted and fined $1200 by the Magistrate. The arrest of the two defendants came about as a result of the police mounting observation in the vicinity of Block 40 Sau Mau Ping Estate.

2. The prosecution evidence was that the police mounted observation at about 9.18 p.m. on the night of 24 June 1992 and they were observing the activities of a man wearing a grey singlet, grey denim shorts and slippers and those of another man. The other man was seen to hand a $100 note to the man in the grey singlet who then took a packet of white substance from his right front pocket and handed it to that man who put it in his shirt pocket. The police suspected that the substance involved was dangerous drugs, and arrested the two men. The one in the grey singlet was the appellant PANG Kam-wah and the other was the 2nd defendant who pleaded guilty.

3. When searched a packet of white powder was found in the right front pocket of the appellant’s shorts and these were subsequently examined by the Government Chemist and found to contain salts of esters of morphine.

The Trial

4. The appellant was unrepresented at the hearing before the Magistrate. When the trial commenced the trial procedure was explained to him by the Magistrate. He was told he had the right to cross-examine the prosecution witnesses, to submit no case at the close of the prosecution case, to remain silent or to give evidence in his own defence, to call witnesses and to make a final submission. After this was explained the appellant said “I understand. I have no witness of the defence.”

5. Later on in the course of cross-examining the first police witness the appellant told the Magistrate he wanted to fetch his witness. When asked the name and address of the witness he said he was not clear; he knew her through playing mahjong. Later, the appellant said to the Magistrate “I was framed by the police” and again told the court he had no witnesses and could not give the name and address of his witnesses. This took place after the testimony of PW1 was concluded. After the close of the prosecution case, the appellant called one witness, a Madam Chong who gave evidence to the effect that some time after 9 p.m. on 24 June 1992 the appellant went into a shop in Block 40 Sau Mau Ping where she was playing mahjong; the appellant stayed there for the time necessary to smoke one cigarette then went outside, walked about, sat outside the shop and she said she did not see the appellant in the corridor of Block 40.

Defence of Alibi

6. The defence case as it is now advanced on his behalf in this court did not emerge very clearly in the court below. Eventually it transpired that this was a defence of alibi. He appears to have accepted that he was arrested by the police as alleged in the testimony of PW1 and PW2 but he said he was not the man in the grey singlet seen handing a packet of white substance to the 2nd accused.

7. On the facts of the case it seems beyond the dispute that when arrested the appellant did have a packet of heroin in his possession. The evidence to the effect that a white packet found in his right front pocket contained salts of esters of morphine was unequivocal and unchallenged.

8. On behalf of the appellant Mr. Buchanan now submits that the Magistrate never considered the alibi defence and did not properly direct himself on this issue. I do not accept this submission.

9. On the police evidence the appellant was, as the Magistrate said in his findings, caught red-handed. The police mounted observation at 9.18 p.m. The activities of the man under observation, the man in the grey singlet, therefore occurred some time after 9.18 p.m. There was in fact no particular reason for Madam Chong to have been accurate about time; after all she was only playing mahjong. But assuming Madam Chong had been wholly convincing as a witness and accurate as to the time when the appellant was in the shop, the effect of that was that he was there some time after 9.00 p.m. This was not necessarily inconsistent with the police evidence. But, as the Magistrate found, Madam Chong was not a convincing witness. There was accordingly nothing before the Magistrate to cast doubt on the accuracy of the testimony of the two police witnesses who gave evidence of their observations: witnesses found wholly convincing by the Magistrate.

Material Irregularity

10. I now turn to the procedural aspect of the case on which complaint is made on behalf of the appellant. As mentioned earlier, when the case was called before the Magistrate, the second defendant pleaded guilty. There was then a brief adjournment. The Statement of Facts prepared by the prosecutor was then amended to delete references to the appellant and the Statement of Facts as edited was then put before the Magistrate as the facts to be considered in considering sentence for the 2nd defendant. In fact, as Mr. Buchanan points out, the editing did not wholly remove the references to the appellant; for example, under the heading “Exhibit” there was reference to a polythene packet containing No. 4 heroin seized from the appellant, and also references to certain banknotes, totalling $2,120 seized from the appellant. But there was nothing prejudicial here, and evidence was later given to substantiate those statements; such evidence was never challenged.

11. There was, however, one statement to which strong exception has been taken in this court which said this:

“On 24.6.92, SDS SMP received a piece of DD information that there is a DD trafficker active in the area of Block 41, Sau Mau Ping Estate. So, Officers of SDS SMP conducted observations and laid ambush in the vicinity....”

12. On behalf of the appellant, Mr. Buchanan makes the following points of material irregularity. Firstly, he says that the Magistrate failed to inform the appellant of his right to apply to discharge the trial Magistrate and to have his case put before a different Magistrate, after the Magistrate had received the guilty plea of the 2nd defendant. He says that in the circumstances the Magistrate ought not to have proceeded to try the appellant, without at any rate giving the appellant the opportunity to have him discharged. This, counsel says, is an aspect of partiality on the part of the tribunal.

13. I find it difficult to accept this submission. The question is, what adverse impact the 2nd defendant’s plea might have had on the fair trial of this appellant. This was not a case where the co-accused had, for example, admitted that he had purchased dangerous drugs from the appellant. What the 2nd defendant did was to admit that he himself was in possession of dangerous drugs. His admission in no way implicated the appellant as the man in the grey singlet. That issue which seems eventually to have been the only real issue at trial was wholly untouched by the 2nd defendant’s admission. I see no reason why the Magistrate should have considered discharging himself in these circumstances; and there was no duty on his part to advise the appellant that he had the right to make such an application.

14. The second point is this. The Statement of Facts put before the Magistrate for the purpose of the 2nd defendant’s sentence said that there was “a DD trafficker active in the area of Block 41”. This, it is said, tended to implicate the appellant. However if the police evidence was to be believed then there was no doubt whatever that at the time in question there was indeed a person engaged in drug trafficking in the vicinity. It was no part of the appellant’s case to say that the activities as described by the police were wrong, were invented or anything of the kind. His case essentially was that he was not the man identified as the man in the grey singlet. It is therefore difficult to see how that statement prejudiced the proper trial of the appellant’s case.

15. Reference was made to the case of Chow Hoi Ping  Cr. App. No.322 of 1989 [unreported, 20th February 1990] where, in the course of the testimony at trial, there was repeated reference to the appellant being a “trafficker” and a “targeted trafficker”. There the court commented that in giving evidence police witnesses should not use the term “target” since it carried with it the suggestion that the “target” is known, from information received, to be involved in something illicit. However, what we are dealing with here is not a judge sitting with a jury but with a magistrate sitting alone. There is nothing to suggest that when he embarked upon the trial of this appellant he had in any way put in the scales, in evaluating the evidence against the appellant, the statement in question. We are not here dealing with inadmissible or prejudicial evidence. No evidence of any kind was given in the course of this appellant’s trial to the effect that the police believed him to have been an active trafficker. The use of the Statement of Facts for the purpose of sentencing of the 2nd accused is not, in my judgment, an irregularity in the course of this appellant’s trial.

16. Thirdly, counsel submits that the judge had wrongly taken into account the fact of the 2nd defendant’s guilty plea in considering the guilt of this appellant. Counsel referred to a passage in the Magistrate's findings where he said:

“The drugs sold to Liu Sing Keung who was D2 in this case and who had pleaded guilty and the other packet of dangerous drugs found on the person of this defendant (P-6), were both analysed by Government Chemist and had been certified to be the described dangerous drugs mentioned in the amended charges.”

17. This, counsel submits, is an irregularity at the trial and he invites attention to the case of Moore [1956] 40 Crim. App. R.52 at p.54 where Goddard LCJ said that the fact that a co-accused pleaded guilty is no evidence against his co-prisoner. I do not regard the passage in the Magistrate’s findings set out above as use by him of evidence in the way referred to in the case of Moore. What the Magistrate was here dealing with was one ingredient of the charge namely, whether it had been established beyond reasonable doubt that the drugs referred in the charge were dangerous drugs. Obviously if what was sold to the 2nd defendant Liu Shing Keung was not proved to have been dangerous drugs then that goes some way to negativing the inference of trafficking as far as the appellant is concerned; but evidence was adduced in the trial of this appellant to the effect that what was sold to the 2nd defendant was dangerous drugs. As to that there was simply no challenge and the evidence was completely overwhelming. Whether the co-accused pleaded guilty or not could hardly have weighed in scales in these circumstances. In my judgment, there was nothing prejudicial to the appellant when the magistrate adverted to the 2nd defendant’s guilty plea in the way he did.

18. There was a further matter advanced on behalf of the appellant. It is this. He had, in fact, about a year before this case, appeared before the same Magistrate. This was in October 1991, when he pleaded guilty to a charge of possession of dangerous drugs and was fined $1000. There is no suggestion that the Magistrate recalled that fact. Given the large number of cases dealt with by magistrates generally, it would seem improbable that the Magistrate would have so recalled. This fact was never pointed out to him in the course of the trial. The case of Lo Kwok-hung Cr.App. 137 of 1989 (unreported, 19th October 1989) was referred to in the course of the hearing. There the Chief Justice adopting the formulation of Ackner L.J. in Liverpool JJ. exparte Topping [1983] 1 WLR 119 at p.123H set out this test :

“Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?”

Adopting the same test I cannot see how it could possibly be suggested that a fair-minded person would have considered the Magistrate biased simply because, factually, it can be shown that he had dealt with the same defendant on another charge about a year before. The Magistrates have territorial responsibilities. They deal with cases within particular areas. It frequently therefore happens that the same defendant appears before the same magistrate on successive occasions.

19. In relation to the points of “material irregularity” which I have just dealt with, counsel also relies upon Article 10 of the Hong Kong Bill of Rights; in particular Article 10(2), the right of everyone to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. Counsel’s submission is that the Magistrate concerned did not come within the class of “impartial tribunal” because of the matters I just dealt with. He has in fact not submitted that the requirement of impartiality in Article 10(2) goes beyond what the Common Law of Hong Kong lays down.

20. In my judgment none of the matters complained of impeached the Magistrate in question as an impartial tribunal. For the reasons I have just given this appeal is dismissed.