THE QUEEN v. LAI YAU CHUEN

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

CRIMINAL APPEAL NO. 546 OF 1989

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BETWEEN

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JUDGMENT

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Barnes, J.:

1. The applicant pleaded not guilty before His Honour Judge Roy in the District Court to a charge that on the 1st of June 1989 he was in possession of a dangerous drug for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drugs Ordinance. The particulars alleged that the offence was committed in the male toilet of a restaurant in the Shek Kip Mei estate.

2. The evidence for the prosecution came from police officers who said that they searched him in the toilet at about 5.45 p.m. that day and found an envelope in the pocket of the jeans he was then wearing. Inside the envelope were two plastic bags each wrapped in tissue paper. The plastic bags contained the dangerous drugs particularized in the charge. In answer to the caution which followed the discovery of the drugs, he said that the white powder was not his and that he did not know to whom it belonged.

3. The applicant gave evidence and called two witnesses. His own evidence was that he was searched by the police before he entered the toilet but nothing warranting police action was found on him. He was then taken into the toilet where the officers then searched the toilet cubicles. Shortly afterwards one of the officers showed him a parcel of dangerous drugs. It was then suggested to him that he should be an informer in relation to dangerous drug activities but he declined the invitation. As a result, he was arrested for possession of dangerous drugs. He agreed that he did say on arrest that the white powder was not his and that he did not know to whom it belonged.

4. One of the witnesses he called said that he was having tea at the restaurant with the applicant and that when the applicant left the table to go to the toilet, he saw him talking to some people who, so the witness thought at the time, were friends of the applicant. He saw the applicant enter the toilet and emerge about 10 minutes later in handcuffs and accompanied by the people with whom he had earlier been talking.

5. The other witness was a waiter in the restaurant who gave a similar account of having seen the applicant talking to people outside the toilet going with them towards the toilet and then 5 or 6 minutes later, seeing them emerge from the toilet with the applicant then in handcuffs.

6. The learned Judge accepted the prosecution evidence that the drugs were found on the applicant's person, rejected the evidence of the applicant and his witnesses to the extent that it was inconsistent with that prosecution evidence and convicted him.

7. In his application for leave to appeal against conviction, the applicant relies on 2 main grounds. The first is that the learned trial Judge's approach to the issue of which witnesses were truthful and which were inventing evidence was flawed and based on an error of law. In support of this ground, his Counsel refers to a statement in the Judge's reasons for verdict where he said "none of the evidence from the defence witnesses was of such a quality as to raise any reasonable doubt in my mind that what I had heard from the police officers was true." It is contended that that disclosed an error of law because firstly, the duty of the Crown is to convince the tribunal of fact upon the whole of the evidence called by all the parties of the accused's guilt beyond reasonable doubt, and secondly, the Judge did not look at the evidence as a whole and then decide which facts he could find beyond reasonable doubt but instead, appeared to be or was convinced of the truthfulness of the Crown witnesses before he then turned to the defence witnesses to see if they could raise any reasonable doubt in his mind that what he had heard from the police officers was true.

8. If of course, the judge was indicating by those remarks that he thought that the test of the applicant's guilt depended upon whether the applicant succeeded in raising a reasonable doubt about it, we would readily agree that the application should succeed with the result that we would allow the appeal and quash the conviction. But we think that the submission is not a proper interpretation of the Judge's remarks, and that, properly understood, his remarks do not indicate any error in law at all.

9. What his remarks disclose is a description of the overall effect of the testimony upon him.

10. By the nature of trial proceedings, the whole of the testimony in a case can never unfold as instantaneously as a story can be unfolded by the sudden unwrapping of a mural. The tribunal of fact must of necessity form tentative impressions regarding the reliability of the testimony it receives, witness by witness, exhibit by exhibit. What the judge did here was to form a tentative view of the police testimony regarding the finding of the drugs on the applicant's person in the toilet. If that testimony favourably impressed him regarding its credibility, and his reasons for verdict make it clear that it did, then unless subsequent testimony, prima facie worthy of credence, destroyed or weakened the credibility of that earlier testimony, he was duty bound when considering the whole of the evidence to accept it. That duty to accept it arose, not because of the fact that it was earlier and therefore presented by the prosecution, but because in the scheme of the testimony as a whole, the tribunal of fact was required by reason and by law to accept it and to reject the testimony inconsistent with it.

11. We are satisfied that in this case the judge was simply disclosing his thought processes in relation to his tentative reaction to the prosecution and subsequent testimony when he made the remarks referred to earlier, the remarks which have given rise to this ground of appeal. They are also the remarks which have given rise to the second ground of appeal which I need not mention because they are as insubstantial as the first for the reasons I have just given. We therefore see no substance in the grounds put forward in support of this application for leave to appeal. We therefore accordingly reject the application and dismiss it.