HKSAR v. WU PAK HUNG

HCMA1027/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1027 OF 2003

(ON APPEAL FROM KTCC 2166/2003)

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J U D G M E N T

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1. On 25 September last year the appellant (who elected not to give evidence) was convicted after trial of an offence (committed on 3 November 2002) of possessing three tablets of the dangerous drug commonly known as 'ecstasy'. He was fined $5,000. He appealed against his conviction which appeal I dismissed on 11 February 2004. My reasons follow.

2. In his comprehensive and helpful Statement of Findings the magistrate says, inter alia, the following :

"The case against the appellant was that police officers observed the appellant for a number of minutes. They approached the appellant, whereupon he threw away a tissue. When the police officer concerned recovered the tissue, he found that it contained three tablets. On analysis the tablets were found to contain the dangerous drugs more particularly described in the charge (and commonly known as 'ecstasy').

Evidence.

The prosecution called three witnesses to give oral evidence. ....

PW1 gave evidence that, at about 1:20 a.m. on Sunday, 3rd November 2002, he was in a private car in a lay-by opposite the entrance to the car park at the Hong Kong International Trade and Exhibition Centre ('HITEC') in Kowloon Bay. He was with PW3 and police sergeant 10925. He saw the appellant and PW2 who were standing on the pavement next to the entrance to the car park of HITEC. During the eight minutes or so that the witness observed the two men, PW1 said that they appeared to be standing separately and that they did not appear to have any contact with each other. Eventually, the three police officers got out of the vehicle and went over to the appellant and PW2.

The witness and police sergeant 10925 went to the appellant, whilst PW3 went to PW2. The two officers showed the appellant their warrant cards. PW1 observed the appellant throwing something from his left hand onto the ground. PW1 recovered the item and discovered it to be a lump of white tissue. PW1 opened the tissue and found that it contained three green pills or tablets. The witness suspected that the tablets were dangerous drugs. He therefore arrested the appellant for possession of dangerous drugs and cautioned the appellant. Under caution the appellant said: 'Ah Sir, this stuff has nothing to do with me.' PW1 asked the appellant if he knew the other man and the appellant remained silent. The police officers took the appellant and PW2 to the police station.

In cross-examination counsel closely questioned PW1 about the relative positions of the appellant and of PW2, and about the distances between them. PW1 agreed that, at the end of his observation of the two men, PW2 was walking towards the appellant but that there was still a distance between them. ....

PW2 gave evidence that he had arranged to go to a 'rave' party at HITEC with the appellant (whom he knew as 'Ah Hung') and others. He could remember that, among the others he had arranged to meet, were 'Ah Tam' and 'Ryan'. PW2 was the first to arrive but, through a friend's phone, he learned that the appellant had arrived at the car park. PW2 walked to the entrance of the car park to meet the appellant. The witness and the appellant waited there for the arrival of Ah Tam and Ryan. PW2 had a conversation with the appellant about the other two persons being late. After a while, a light goods vehicle drove past. Police officers got out of the vehicle and rushed over and detained them. The officers then said the appellant had dropped a packet on the ground. PW2 saw a police officer open the packet and say that there were 'head-swinging pills'.

....

In cross-examination PW2 said that he had been aware for a few seconds that some males in the vehicle were observing him. When the police officers rushed over to the two men PW2 and the appellant were standing abreast. PW2 denied that the drugs in question in fact belonged to him at the scene. He also denied that, at the last moment before the police officers came to them, he had put the tissue paper into the appellant's hand. PW2 denied that he had said at the scene that he did not know the appellant.

....

PW3 gave brief evidence of his dealings with PW2 at the police station. In cross-examination he gave further details of those dealings. He agreed that he was part of the team dealing with PW2 and the appellant at the scene. When, from the vehicle, he observed the two men they were standing apart. However, when he and his colleagues walked over to the two men they were together and he took PW2 to one side for further investigation. ....

VERDICT AND FINDINGS.

Save for the fact that the prosecution case included the evidence of PW2 the case was a straightforward one. PW1 said that he saw the appellant throw to the ground the tissue containing the dangerous drugs in question. I found that witness to be honest and credible. He was frank in telling me that the reply of the appellant under caution after arrest was to the effect that the drugs did not belong to him. Much was made in cross-examination of whether the appellant and PW2 were standing together or separately when the police officers approached them. Counsel for the appellant pointed out that PW1 and PW3 had disagreed on that point. Counsel also pointed out that there was a discrepancy between PW2 and PW3 as to whether PW2 had denied at the scene that he knew the appellant. However, I did not find these discrepancies to be material. PW1 gave evidence that the appellant threw away the tissue containing the dangerous drugs after he and his sergeant had intercepted the appellant and shown their warrant cards. The question of whether PW2 and the appellant were standing together or somewhat apart was not a relevant matter. This consideration did not, in my judgment, call into question the credibility of PW1.

It was suggested to me by counsel that if the appellant and PW2 were standing close together as the police officers approached it would suggest that PW2 had somehow slipped the tissue paper into the hand of the appellant at the last moment without the appellant being aware of the contents of that tissue paper. Counsel submitted that it was incredible that the appellant should have thrown away the tissue paper in full view of the approaching officers if he had been in possession of the tissue paper and knew the contents thereof. However, PW1 did not see any such transfer, as he would be bound to if it occurred. Furthermore, in cross-examination, PW1 firmly rejected the suggestion that any such incident occurred. Any question of what the appellant might have thought in circumstances that the evidence did not support was therefore speculation and idle speculation at that.

....

At the conclusion of the case the charge of possession of dangerous drugs stood or fell on the evidence of PW1. As I have explained above I was satisfied so that I was sure, beyond a reasonable doubt that PW1 was an honest, credible and reliable witness. The evidence that PW1 gave proved that the appellant was in physical possession of the dangerous drugs in question. The evidence further proved that the appellant fully knew that he had such drugs in his possession. Accordingly, I was satisfied so that I was sure, beyond a reasonable doubt that the prosecution had proved the appellant to be guilty of the offence in the charge. I so found and convicted him thereof. ...."

3. The grounds of appeal against conviction perfected by Mr Philip Wong for the appellant (who also appeared for him at trial) are these :

"(1)	In his oral verdict dated 11th September 2003 convicting the Appellant on the charge of possession of dangerous drugs .... the Learned Trial Magistrate failed to consider and resolve the following:-
	(a)	There were inconsistencies and conflicts in the testimony of PW1 and PW3 in that PW3 testified that upon 3 police officers including PW1 and PW3 alighting from their vehicle after observing PW2 walking towards the Appellant and when the police officers approached and intercepted PW2 and the Appellant the 2 of them were together whereas PW1 denied that the 2 of them did come together. In fact the Learned Trial Magistrate never referred to this aspect of PW3's testimony in his oral verdict.
	and
	(b)	.... the Learned Trial Magistrate failed to consider sufficiently the evidence of [PW2's] confession to the police that he owned the dangerous drugs in question that he might be telling the truth despite he denied so when he testified in court.
(2)	Having failed to consider [such matters] sufficiently or at all the Learned Trial Magistrate erred in accepting PW1's testimony for convicting the Appellant on 11th September 2003.
(3)	In his Statement of Findings dated 12th October 2003 (sic), the Learned Trial Magistrate referred to PW3's testimony in that when he and his colleagues alighted their vehicle and walked over to PW2 and the Appellant they were together which was inconsistent and conflict with what PW1 had testified. And the Learned Trial Magistrate gave reasons in his Statement of Findings resolving the said inconsistency and conflict but the said reasoning was wrong for the following reasons:-
	(a)	Both the finding and reasoning concerning the inconsistency and conflict between PW1 and PW3 came at a time subsequent to date of the conviction and so was ex post facto.
	and
	(b)	The said inconsistency and conflict between the testimony of PW1 and PW3 are relevant and material as to credibility of PW1 as well as to the reliability of his observation at the material time."

4. It is implicit in those grounds of appeal that Mr Wong complains that there were inconsistencies in the evidence of the prosecution witnesses; that those inconsistencies were crucial and as such the magistrate was obliged, when giving his oral reasons for verdict, to deal with them. Mr Wong complains (on the authority of HKSAR v. Sin Chi Yin [1999] 2 HKC 403 and of the cases referred to therein) that it was not sufficient for the magistrate to deal with the inconsistencies in the prosecution evidence in his subsequent written Reasons for Verdict but that he was obliged to deal with them orally at the time when he convicted the appellant.

5. Upon my understanding of those authorities they say no more than that if a magistrate is required to reach a verdict based principally upon such crucial evidence as identification or corroboration, and if he seeks to give oral reasons at the time of his verdict, he is obliged to make a finding specifically about that evidence. And that if he does not do so there may be substance in a suggestion that he reached his verdict without consideration of that crucial evidence to which he only turned his attention at a later stage.

6. Without necessarily agreeing with that proposition, given the very heavy workload of magistrates, it seems to me that if it is correct and if a magistrate is not obliged to give comprehensive oral reasons at the time of reaching a verdict, then the evidence in question must be crucial or critical to that verdict.

7. With that in mind I invited Mr Wong, at the hearing of this appeal, to tell me how the so-called inconsistencies in the prosecution evidence were crucial or critical to the verdict reached by the magistrate. Mr Wong suggested that the reasons were that they might affect the credibility of PW1 and that they might allow for the possibility that PW2 had in fact passed the drugs to the appellant prior to the appellant's arrest.

8. With the greatest respect, and given the fact that the appellant had elected not to give evidence; the fact that PW2 denied passing anything to the appellant and the fact that PW1 (whose evidence the magistrate accepted at the time of conviction) said that he did not see PW2 pass anything to the appellant, I am unable to see the relevance (let alone the crucial relevance) of the apparent inconsistencies.

9. In my judgment the magistrate was not obliged to go into detail about the so-called inconsistencies at the time when he delivered his verdict. He was obliged to do so in his written Reasons for Verdict - and he did so.

10. It was for these reasons that I dismissed this appeal.