HONG KONG SPECIAL ADMINISTRATIVE REGION v. CHAN Che-man

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 299 OF 1997

(On appeal from KTC 3865 of 1996)

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J U D G M E N T

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1. The appellant, CHAN Che-man, was convicted after trial on a charge of possession of a dangerous drug. The prosecution's case against the appellant was simple and straightfoward. He was stopped and searched outside a 7-Eleven shop on the ground floor of Tsui Shek House in Ping Shek Estate. According to the prosecution witnesses, the dangerous drugs, the subject matter of the charge, was found from his person. Before that, he was seen getting off his motorcycle and looking around, according to the officer, nervously.

2. The officer further said when the police approached the appellant, the appellant turned around to try to walk away. When he was asked why he did that, it was suggested that in response he said, "Once I saw you I knew you were a police officer." After the packet of dangerous drug was found from his person, it was suggested that the appellant said, "It is white powder."

3. The defence case was it was a frame-up; the police were fabricating all these allegations against him. The appellant claimed that he was going to the 7-Eleven shop to make a telephone call and as he was walking towards the 7-Eleven shop, he was stopped by two men and a woman. It was said that he had parked his motorcycle illegally and a search of him was demanded. Initially, the appellant protested but eventually he was searched but nothing unlawful was found from his person. Nevertheless, he was told that he would be charged with the offence of possession of dangerous drugs.

4. The appellant also called a witness who said at the material time the appellant had, in fact, arranged to meet her to repay her some money. This witness also said she witnessed the appellant talking and quarrelling with the two police officers and a woman. She also witnessed the appellant leaving the shop with these officers.

5. The learned magistrate, having analysed the evidence in great detail, concluded that the police officer were telling the truth. He rejected the evidence of the appellant and thereby, based on the evidence of the prosecution witnesses, convicted the appellant. On the evidence, the learned magistrate was clearly entitled to do what he did. Indeed, no complaint was made on such aspect.

6. In this appeal, the only issue raised was that the learned magistrate had allowed certain prejudicial evidence which were inadmissible evidence, and he had failed to state in his statement of finding that he took no account of such evidence in his deliberations about the guilt or otherwise of the appellant.

7. The inadmissible evidence in question was, in general, the evidence pertaining to the suggestion that at the material time the appellant was a targeted person based on certain information received by the police officers. It is fair to point out that the learned magistrate was clearly aware of the implication of such matter, at a very early stage. He was clearly aware of the significance and its implications as demonstrated by his observation which was recorded at page 11 of the Record of Proceedings, when he actually said, "No, don't tell me. For Mr Polson's advantage, he was about to say, "Earlier on they receive a message.' Don't tell me that."

8. Then for the rest of the evidence of the first prosecution witness no reference was made at all to the appellant being a targeted person. Indeed, as demonstrated by the Record of Proceedings, great effort had been made to avoid such reference in the evidence-in-chief of the first prosecution witness. The only reference was that the police were there for a mission, in response to a question directly from the learned magistrate. The question was asked clearly with a view to avoid inadmissible evidence being adduced by the prosecution.

9. In my view, no objection whatsoever could be taken about the reference of the police being on a mission. Instead, when the first prosecution witness was being cross-examined by the defence counsel, the reference of the appellant being a targeted person was referred to, and indeed, quite extensively. The same thing happened to the only other police witness, the second prosecution witness, and it was during the cross-examination by defence counsel that he was asked matters pertaining to the suggestion that the appellant was a targeted person.

10. It was not too clear as to why defence counsel chose to bring out the matters or the evidence of the appellant being a targeted person. It appeared that the defence counsel was suggesting that if the police was then dealing with a targeted person, someone known to them, they shouldn't have made the mistakes that they were alleged to have made. It was also brought in, it appeared, for the purpose of rejecting or casting doubt on the veracity of the evidence of the police officers. Irrespective of the reasons for the defence counsel to bring out such matter, the Record of Proceedings clearly demonstrated that such matter was brought out by the defence deliberately.

11. The Record of Proceedings also indicated that the defence intended and relied on such matters as part of the defence case.

12. In my view, the appellant cannot now complain that such evidence was introduced as it was the defence who introduced it at first, and it was the defence who intended and did rely on it as part of the defence case. It was suggested that the learned magistrate had not stated in his statement of findings that he took no account of such matters as prejudicial to the appellant. Although the learned magistrate had not mentioned such matter specifically in his statement of findings, on the Record of Proceedings, as demonstrated, he clearly had those matters in mind.

13. Great objection was taken to a paragraph at page 116 of the statement of findings by the learned magistrate when the learned magistrate said, "The officers, though acting on information and had a target in mind, might be enthusiastic officers, I did find them to be truthful and I was satisfied beyond reasonable doubt that it was safe to rely on their evidence to support a conviction."

14. When the learned magistrate was saying this it was clear to me that he was simply suggesting that the appellant, being person known to the police officers in the circumstances of this case, did not affect the credibility of the prosecution witnesses as suggested and emphasised by defence counsel in his closing address. In any event, it is not a trial by jury. We are concerned with a professional magistrate who was at the material time clearly aware of the significance of the issue in question.

15. Looking at the record and the reasons of the learned magistrate in his statement of finding, I am fully convinced that he had not allowed such matter, namely reference to the appellant as a targeted person, to affect the appellant in a prejudicial way. Clearly, the learned magistrate must take that into consideration as a matter that has been relied on and emphasised by defence counsel in the course of the defence case. The learned magistrate would be wrong to completely ignore such matters. But as I said, he had not allowed such matter to affect the accused -- the appellant in a prejudicial way.

16. I have considered the evidence as well as counsel's submission carefully. I have also looked at and considered the two authorities referred to this court by defence counsel, namely the cases of CHOW Hoi-ping and the case of LAI Chi-po. I am not persuaded at all that the matter raised in this appeal would in any way render the conviction against the appellant unsafe and unsatisfactory.

17. The only point raised in this appeal fails. The appeal must therefore be dismissed.