THE QUEEN v. CHAN WING TAK and Others

IN THE COURT OF APPEAL

1995, No.113
(Criminal)

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J U D G M E NT

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Bokhary, J.A.:

1. These are applications for leave to appeal against conviction. They come to us from a trial before Deputy Judge Geiser in the District Court. The charge sheet named 11 accused. These three applicants, Mr Chan Wing-tak, Mr Chong Chak-pong and Mr Lee Ming were the 6th, 7th and 10th accused respectively.

2. Of the 37 charges contained in the charge sheet, Mr Chan faced three (being the 19th, 20th & 21st charges which were all of trafficking in dangerous drugs); Mr Chong faced five (being the 22nd to 26th charges which were also all of trafficking in dangerous drugs); and Mr Lee faced one (being the 36th charge which was of doing an act preparatory to trafficking in dangerous drugs).

3. On January 12 this year, each applicant was convicted as charged.

4. The evidence against Mr Chan and Mr Chong was essentially of undercover police officers who testified that, posing as customers, they had bought small quantities of dangerous drugs from them.

5. The evidence against Mr Lee took the form of confessional statements to the police.

6. For the most part, what each accused has put before us in writing and in oral argument are either wholly off the point or are points best suited for assessment by a trial judge who sees and hears the witnesses rather than by an appellate court which does neither.

7. We will, however, make specific reference to Mr Chan's 3rd ground which reads:-

"PW1, when giving evidence in court, copied on his palm the positions of us the accused and looked carefully at our positions. During PW3's testimony, the court recessed three times to allow the witness to read in details the police notebook. Despite this, the witness was still unable to describe how exactly he carried out his duties. At least, the court had to adjourn early. This made me doubt even more how true his evidence was."

8. Mr Chong's 3rd ground also refers to PW3 being allowed to refer to his notebook.

9. Seeing things like that, we have naturally studied the judge's Reasons for Verdict with additional care; and we see that in those reasons he said this:-

"Insofar as PW1 is concerned, I am aware that at the present time he has been interdicted and may possibility be the subject of a charge of perverting the course of justice in an unrelated matter. He is also the officer, I recollect, who was found to have written down the numbers of the defendants on the palm of his hand. Dealing with that matter first of all, apart from it being rather a stupid thing for the officer to have done, I do not read anything sinister into it. Each of us, and I particularly, at one stage of the trial, at the very beginning, had difficulty in knowing which defendant was who, due to the large number of defendants and the fact that some of the original defendants are not with us. In so far as the allegation of attempting to pervert the course of public justice is concerned, I have considered this but do not consider it detracts from his general credibility as a witness.

PW3 clearly had difficulty at one stage or another in recollecting details and had to constantly apply to be allowed to refer to his note book. I do not regard this as being in any way strange or unusual. I have already said that the officer was giving evidence as to events that happened over a year ago, which is difficult enough. But this officer was also obliged to give detailed evidence of 12 occasions when he went to the square in September and October of 1993. There were other occasions that he went to the square, but that was in relation to people who are not in court. Clearly he had to look at his note book to refresh his memory as to these details, which I allowed after being satisfied that his recollection of events was clear at the time of making his notes. PW3 was a good witness, and I believe his testimony."

10. So it seems to us that the judge approached his task with due care. There were points which called for consideration; but the judge gave them due consideration. In the circumstances, we see no basis whatsoever on which these convictions can be overturned; and the result is that each of the three applicants are refused leave to appeal against conviction.