HKSAR v.WONG KWOK KEUNG

HCMA1209/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1209 OF 2001

(ON APPEAL FROM SPCC 3645 OF 2001)

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J U D G M E N T

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1. The appellant has appeared in person today to prosecute his appeal against his conviction on 18 October 2001 by Mr Justin Ko, Deputy Magistrate, of one charge of trafficking in a dangerous drug in that on 12 February 2001 in Kowloon, he trafficked in one packet containing a mixture of 0.34 grammes containing 0.08 grammes of heroin hydrochloride.

2. The appeal is brought on the general ground that the conviction was against the weight of the evidence, and the appellant further complains that the magistrate leaned unduly in favour of accepting the evidence of the prosecution witnesses.

3. The prosecution case consisted of the evidence of five witnesses, all police officers who testified that they had been instructed to lay ambush and conduct observations from various locations inside the Carpenter Road Park on the day in question.

4. The evidence of PC 47468 (PW1) was critical. It was to the effect that at about 1755 hours, he saw three males approaching the appellant at the football pitch in the park. He observed the appellant pointing to a patch of muddy ground nearby, whereafter they all walked over to that muddy ground and there he observed one of the three men (who was the 2nd defendant) pass some banknotes to the appellant, who pocketed them, and then after looking left and right the appellant put his right hand into his mouth as if taking something out of his mouth, and then passed something with the same hand to the 2nd defendant. PW1 then observed that the 2nd defendant immediately passed something on to each of the other two men who were with him, and thereafter he observed them all leaving the area of the muddy ground.

5. He related this whole incident to his colleagues over his beat radio and he observed his colleagues moved forward from their positions to intercept the appellant and the other three males.

6. Two other police officers also testified to the effect that they had been laying ambush in a different position from that occupied by PW1, from which they were not able to observe any of the events which PW1 described. However, they heard his account of his observations over the beat radio, and at approximately 1810 hours they took action and intercepted the appellant and the three males inside the park.

7. When the appellant was searched, a sum of $200 was found in his pocket. One of the police officers testified that just before the interception took place, he saw one of the men whom they approached dropped something to the ground which the officer then seized, and it turned out to be a pallet of white stuff which, on analysis by the Government Chemist, was found to be the dangerous drug mixture which is the subject of the first charge.

8. At the trial the appellant, through his counsel, and the 2nd defendant challenged the credibility of the prosecution witnesses on various grounds, and the appellant gave evidence in which he admitted that on the day in question he had met the 2nd defendant and the other two males in the park, but he denied that they had proceeded to the muddy ground, or that he had received any money or that he had handed anything over to any of the other men. According to the appellant, he was innocently chatting to the 2nd defendant and the other two men when the police officers arrived and arrested them for no reason.

9. In his careful and thorough Reasons for his Decision and his Statement of Findings, the magistrate detailed how, having carefully listened to and observed the demeanor of all the witnesses who gave evidence, he had not believed the appellant's evidence but had found the police officers to be truthful and reliable witnesses, such that he attached full weight to their evidence. Since he was able to listen to and observe the witnesses when they gave their evidence, the magistrate was in the best position to assess their evidence and their credibility. No proper reason has been adduced for me to interfere with the magistrate's findings of fact or credibility.

10. The magistrate also carefully and properly analysed the conditions under which PW1 had made his observations in order to test the reliability of those observations. There was nothing obstructing PW1's vision, it was a clear day and he was able to clearly see the events which he described over his beat radio and in evidence.

11. The inference was overwhelming on the evidence of the police officers that what the appellant had been observed taking out of his mouth and which he then passed on to the 2nd defendant was, indeed, the pallet of dangerous drugs in question which was the subject of the first charge. His actions clearly constituted trafficking in those dangerous drugs, as defined in the Ordinance.

12. The magistrate was extremely fair to the appellant in disregarding the evidence in relation to the verbal admissions alleged to have been made by the appellant at the scene, and the further admissions contained in the Record of Interview subsequently recorded from him at the police station. The magistrate attached no weight to this evidence, since he held that the appellant should have been cautioned by the police officers and reminded of his right to silence before he proceeded to make those alleged admissions, and that the failure to have thus cautioned him similarly tainted what the appellant later said in his Record of Interview at the police station.

13. In his consideration of the evidence the magistrate correctly applied the burden and the standard of proof, and his finding that on all the evidence the prosecution had proved all the elements of the offence against the appellant beyond reasonable doubt cannot be faulted. I am satisfied that the conviction was safe and should not be disturbed, and the appeal is accordingly dismissed.