THE QUEEN v. YUEN SHUN MING

IN THE COURT OF APPEAL

1986, No. 564
(Criminal)

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JUDGMENT

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Penlington, J.:

1. The applicant was convicted in Kowloon District Court by H.H. Judge Sanders on 4.11.86 on charges of trafficking in dangerous drugs and being in possession of dangerous drugs for the purpose of unlawful trafficking.

2. There were 3 crown witnesses; a Police Sergeant and 2 Constables. Sergeant 10634 said that on the 3rd June 1986 at about 8 p.m. he was keeping watch on a small park in Portland Street, Yaumatei, from the roof-top of a four-storey building opposite. The sergeant produced a sketch of the park which he said was a little bigger thffil the court room and had 3 standard lamps. He said he had binoculars and also a two-way radio. One of the constables, 23178, had the other radio and he was on the ground near the park with P.C. 16769.

3. The sergeant said that at about. 8.30 he saw 3 men talking to each other in the park; one was the applicant, the other was one Tang Ping Wan (D2). He saw D2 give the applicant some money who then went to a dustbin and took out a white packet which he gave to D2. At this point the sergeant said he was about “twice the width of the court" from D2 and the applicant and there HM nothing blocking his view. He could see the applicant's face. D2 then left the park and, as a result of the sergeant sending a message on his radio, was arrested by PC 23178. He struggled and dropped a white packet which contained heroin. He subsequently pleaded guilty to simple possession of that heroin - 4 grammes. He was not called as a witness by either the Crown or the applicant.

4. On being told of D2's arrest with the packet of heroin, the sergeant went down to the park where he and PC 16769 arrested the applicant. They went to the dustbin where 21 white packets of heroin were found, the subject of the third count. They totalled 63.48 grammes.

5. Supporting evidence was given by the 2 police constables.

6. The applicant has filed his own grounds of appeal. There is only one, however, which has any apparent merit. That was that he instructed his counsel to invite the judge to visit the scene at night to see if the sergeant could have had as good view as he said and also to call for the production of police records to show that the incident occurred later than the sergeant said.

7. Mr. Ming Hwang has furnished a statement in which-he says-he was instructed by the applicant to make the application but was satisfied nothing would be gained by doing so. The applicant had never been to the building where the sergeant kept watch and knew of nobody who had. It would, of course, have been open to him to send someone there to check whether the sergeant could see clearly at 9 p.m. from where he was and to call that person as a witness.

8. The police records were also not called for because there was evidence that such records would throw no light on the question of when the applicant was arrested. He said it was later than the police evidence suggested but as clearly the park was lit with artificia1 lighting that does not in any event seem to be relevant.

9. The sergeant's evidence that he could see clearly what was going on in the park was supported by ample evidence, the arrest of D1 with the packet of heroin and the finding of more packets in the rubbish bin. He could not have known they were there unless he saw the applicant remove one or he himself had planted them. That was never suggested.

10. In Keung Ping-kai and Anr. v. R.[1], this court said that negligence of counsel in conducting a trial must be of a high degree before the court should interfere and that if counsel conducts a case in a manner which conflicts with his instructions it is to be assumed, in the absence of evidence to the contrary, that he acted in accordance with his assessment of how the defence should be conducted. Here we find no evidence of negligence at all. Counsel cross-examined the sergeant at length and with vigour. All possible points which could show his evidence was not reliable were taken. We are satisfied that no miscarriage of justice has occurred and the application is dismissed.