THE QUEEH v. WONG LAM KIN

BETWEEN

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JUDGMENT OF THE COURT

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Silke, V .P.:

1. Wong Lam Kin - "the Applicant" - appeared for trial in the District Court before His Honour Judge Wally Yeung on a Charge Sheet containing a single charge - possession of dangerous drugs for the purpose of unlawful trafficking. The particulars alleged that he did, on 26th January 1988, near the middle-staircase on the 2nd floor of Block 17, Tung Tau Estate in Kowloon have in his possession dangerous drugs consisting, of 59.74 grammes of a mixture containing 3.93 grammes of salts of esters of morphine.

2. It was the case for the Crown that PC272 (PW1) and PC10916 (PW2) saw the Applicant at about 2:10 p.m. standing on the 2nd floor staircase landing of the middle-staircase of the block. They were then on the 3rd floor staircase landing. They saw him stick his head into the corridor and look around. They came down, intercepted him and he was searched by PC10916. Near the Applicant's crotch the constable found an object and asked the Applicant what it was to which question he received no reply. On further search a white plastic bag, was found tucked underneath the Applicant's underpants. That bag contained 10 plastic bags and one larger plastic bag which itself contained 10 plastic bags. Their contents was the mixture referred to in the particulars.

3. The Applicant was arrested and taken to Wong Tai Sin Police Station.

4. The defence case, supported by evidence by the Applicant and foreshadowed in the cross-examination of the police officers, was that the prosecution case was a fabricatation. The basis for this was that PC272 was already known to the Applicant having in early or mid-January of the same year, together with an Inspector Tang, approached the Applicant and asked him to supply information relating to the supply of dangerous drugs because the Applicant was a known drug addict. PC272 wrote his paging number on a piece of paper which he gave to the Applicant.

5. Some five days before the incident which led to the Applicant's arrest the two police officers again met the Applicant who was then hawking at Block 22 of the Estate. PC272 accused the Applicant of playing games as he had failed to give any information of the sources of supply. The Applicant was warned that if he continued to fool around he would be arrested.

6. On 26th January as other police officers were chasing a person they encountered the Applicant who was stopped and searched but nothing was found. PC272 and PC10916 together with a sergeant arrived on the scene after the search had taken place.

7. It was further the Applicant's case that dangerous drugs were first produced at the Police Station and were there put into a government envelope and sealed. The Applicant refused to sign that envelope on the basis that he had never seen the drugs before. He was then "persuaded" and he wrote his name "Wong" in English as an indication of his attitude. He normally signs the full Chinese characters of his name.

8. All these allegations were denied by the officers concerned. In addition to the allegations which we have recited the Applicant went on that at the time of the second approach by Inspector Tang, the Inspector had written his office telephone number K-2527763 on a black book, the property of the Applicant.

9. In evidence, PC272 agreed that he had given his paging number to the Applicant but not until early February 1988 and this in the report room of Wong Tai Sin Police Station. This was done in the presence and on the instructions of Inspector Tang - the Applicant then being under arrest for another matter of which he was subsequently acquitted. He had told Inspector Tang that he had information in respect of drug cases in the Estate which he would like to give to him. The Inspector thought it proper that matters concerning the offence for which the Applicant was then under arrest should first be dealt with and it was for that reason that PC272 was told to give the paging number. The Applicant could then use it to relay information once he had been released on bail. Inspector Tang denied that he had at any time given the Applicant his own telephone number.

10. The Applicant gave evidence of a much later incident which he says took place on 3rd August 1988. Another unit from Wong Tai Sin Police Station, in charge of an Inspector Wong, had come to search his house. During that search nothing was found or taken but on 14th August 1988, yet another party of police officers came to search. The Applicant was not present at that time. He discovered on his return to his flat that his black notebook was missing. He made a report to this effect to Wong Tai Sin Police Station and the matter was subsequently referred to the Complaints against the Police Organisation (C.A.P.O.).

11. The effect, says the Applicant, of the missing notebook is to inhibit his defence for it would support his allegations of his being arrested not because he was in possession of drugs but because he failed to give the information the police required from him. He accepted that he did not make mention to C.A.P.O. the existence of the paging number on the piece of paper. This because that was not missing though he did speak of it 'to his lawyer on 7th July.

12. Two witnesses were called in support of the Applicant's evidence. The first was Lee Chi Wah (DW2). He said he saw the Applicant being stopped and searched on 26th January. He did not see anything being found in the course of that search. It was his further evidence that he had been approached on 29th January 1988 by the Applicant's wife to ask him to be a witness at the Applicant's trial. This request he had first refused but was later persuaded to appear as a witness. He said in chief that he did not know the Applicant well but knew he had been a hawker and described himself as a welder.

13. The second witness was the Applicant's wife - Madam Yeung Mun Chun (DW3). She was present in the flat during the search which she said took place on 14th August 1988 but did not witness the search itself. She later became aware that the black book had been taken. As to her approach to Lee Chi Wah she said she only heard of` him two days before she gave evidence at the trial of the Applicant which had originally taken place on 23rd January 1988. She stated that some "kai fongs" had told her about him and "I don't know Chi Wah I've never met him before."

14. In commenting directly upon the evidence of Lee Chi Wah the trial judge stated that he considered him to be:

"......clearly trying to avoid any impression that he was acquainted with the Defendant. But in answer to some questions by the Court, it transpired that even up to the present, he was still hawking but on a temporary basis in Tung Tau Estate area, selling fruit and flower." (sic)

 

15. In further comment in relation to the evidence of both Lee Chi Nab and Madam Yeung he said:

"At the outset, I must say I found the evidence of D. W. 2 and D.W.3 most suspicious. Their account of how D.W.2 agreed to be the Defendant's witness is completely different from one another. They tried to impress upon the Court that they didn't know one another. Yet D. W. 3 would call D.W.2 by his name Chi Wah which is a most unusual way to address someone who is but (not) well known to her. D.W.2 also tried to disassociate with the Defendant by saying at first that he had not hawk for the past 2 years, but later told the Court that he in fact is still carrying his hawking business. (sic)"

16. Having observed their demeanour the judge was "convinced" that neither of the witnesses were truthful or reliable. He rejected their evidence "totally".

17. Of the allegations made by the Applicant, he said this:

"The Court have (sic) considered the Defendant's allegation carefully. If such allegation be true, not only did the police officer unjustifiable and wrongly make up the false allegation against him, they also went to the extent of stealing the black book from the Defendant's home when such book would be material. If the Defendant's allegation be true, it involved not just one or two police officers, but the entire team with the support and co-operation of other teams of officer of Wong Tai Sin Police Station. What motive was there for them to do so? The Defendant was but one of the many drug addicts in the area, why should the police gave him such special treatment. It is inconceivable that the police officers could do what the Defendant alleged against them." (Emphasis supplied)

18. He further took the view that the Applicant's failure to complain to C.A.P.O. about the pager number and the telephone number until August 1988 and his failure to mention the existence of the pager number when he did make that complaint was inconsistent with his contentions that he was aware of the significance of the pager number and of the telephone number. The trial judge took the view that, by virtue of the Applicant's reception of the paging number in February 1988, he had used this in an attempt to create a defence and had invented receiving, the telephone number. He thought that, bearing in mind the Applicant's background - and by this he can only have meant the string of previous convictions which the Applicant had brought to the attention of the Court in support of his defence - it required little imagination

"...... to appreciate that he would have no difficulty in getting the office number of Inspector Tang when making up his story about the black book."

 

19. The trial judge was satisfied beyond reasonable doubt that the Applicant was in possession of the dangerous drugs and for the purpose of unlawful trafficking.

20. Mr. Shaw, who appeared for the Applicant, both here and below, has submitted to us that this conviction is unsafe and unsatisfactory and that we should have engendered in our minds a lurking doubt of so substantial a nature as to drive us to that conclusion. In support he attacks various findings of the trial judge. He accepts that individually these may not be sufficient to vitiate the conviction but, cumulatively, they are. He advises us this is a re-trial.

21. He submits that the judge's reasoning, as shown by the manner in which he dealt with the credibility of both the Applicant and of his witnesses, was flawed.

22. Without going in detail into the seven grounds which particularised Mr. Shaw's main contention there are two matters which have caused us particular concern. The first was the trial judge's belief that Lee Chi Wah had changed his story about the times during which he had been hawking. The witness had initially said, as we have indicated, that he knew the Applicant to be a hawker on the ground floor of block 17 but that he did not know him well. His answers in cross-examination must be read in that light. The first question he was asked by counsel then appearing for the Crown was "How long have you known the Defendant?" To which he replied "I don't know him" - an answer not inconsistent with his previous evidence if it related to the quality of his acquaintanceship with the Applicant.

23. When asked when he stopped hawking he replied:

"It is hard to say. If I had something to sell, I stop work. When the business is not doing well I won't do it. When I got a piece of work, I'll be employee."

24. The Court intervened to ask him when was the last time he hawked and the answer recorded is:

"I had been hawking for 2 years"

- which is itself ambiguous.

25. In the course of further cross-examination, Lee said that he marketed in Yiu Tung Lau, that he was an unlicensed hawker and that, in 1985 and 1986, he hawked, there for a year. Business was not good so he became a mobile hawker. This he carried on for several months. He gave he stall in Yiu Tung Lau to his father and stopped hawking there because of frequent encounters with the police. He had been an apprentice welder in his youth and he started back in that trade. On 26th January 1988 he was dealing in that trade having gone to buy material on the previous day so as to measure it and to cut it up. Hence, his reference in chief to having left his measuring tape at home on 26/1/88 and being on the way home to get it when he saw the incident concerning the Applicant.

26. Further the tenor of Lee's answers to questions posed by the trial judge-the nature of those questions being itself a ground of appeal in that it was suggested that the trial judge cross-examined- was also to the effect that he hawked as and when he could: "I adopted a flexible attitude so far as my occupation is concerned."

27. The evidence of the Applicant's wife as to the approach she made to Lee is itself confusing but she did specifically say that on no occasion prior to 23rd January 1989 had she tried to locate him, or for that matter any other "kai fong". To an extent at least this was supported by Lee who in cross-examination said that she had looked for him on that particular day. He went on that he had become aware of the original arrest of the Applicant in January 1988 and, having described the discussions he had had with other people during the course of a meal said that:

"His wife heard people saying that I witnessed that. She came to me at Lam Wah Shop in block 17, she invited me to be a witness. I said I can't do that. She kept on making invitation I refused."

28. While the trial judge, as the trier of fact, would have been perfectly entitled to either believe or disbelieve Lee Chi Wah the reasons he gave for his eventual disbelief were not, with respect, justified by the evidence - even if his suspicion as to the untruthfulness and unreliability of both Lee and the wife was fortified by the wife's reference to Lee as "Chi Wah" and this being a most unusual way to address someone who was not well known to her - for the evidence did not go to support the finding that Lee, in effect, designed his evidence so as to disassociate himself from the Applicant.

29. That the wife, and for that matter Lee, might have confused the dates of the first approach to Lee is a further possibility, given the way in which they gave their evidence.

30. The second area of concern is the use by the trial judge of the sentence:

"It is inconceivable that police officers could do what the Defendant alleged against them"

 

31. While that comment came at the conclusion of a paragraph which made reference to the numbers of police officers who would inevitably have been involved with both the fabrication and the purloining of the black book, nevertheless, the use of the word "inconceivable" suggests that the trial judge was placing too great an evidential burden upon the Applicant. We do not view it as mere judicial hyperbole. Had he simply said that in the light of numbers of police said to have been involved, he found the Applicant's evidence not to be capable of belief that would have been understandable but, as we have indicated, he went very much further.

32. We have given anxious consideration to the trial judge's evaluation of the evidence and the manner in which he dealt with the issues which faced him. We are aware that the suggestion of a lurking doubt should be carefully scrutinized by an Appellate Court and that findings of fact by a trial judge should not be interfered with lightly. Nevertheless, Mr. Shaw has persuaded us that we should have in our minds a sufficiency of doubt so as to bring us to find this conviction to be unsafe and unsatisfactory.

33. We will grant leave, treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction will be quashed and the sentence set aside.