HKSAR v. Badjie Malick

HCMA 143/2017

[2018] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 143 OF 2017

(ON APPEAL FROM ESCC NO 88 OF 2017)

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REASONS FOR JUDGMENT

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BACKGROUND

1.The Appellant was convicted of one charge of “Trafficking in a Dangerous Drug”, contrary to section 4(1)(a) of the Dangerous Drugs Ordinance (Cap 134), following a trial in the Eastern Magistracy before Kenneth Chan, Esq (“the Magistrate”).  He was sentenced on the same day on 6 January 2017 to 20 months’ imprisonment.  The Appellant appealed his conviction.  After the hearing, I dismissed the appeal forthwith and indicated that I would hand down my full reasons for judgment which I now do.

SUMMARY OF EVIDENCE

2.The case for the prosecution and defence was carefully and accurately summarized by Mr. Eddie Sean, SADPP, counsel for the Respondent which I shall adopt as follows:

“ Prosecution’s Case

2. Between March and August 2016, a police decoy (PW3) posed as a public member to purchase dangerous drugs from the traffickers in Central. Another police officer (PW4) would keep an eye on PW3 and the trafficker, and subsequently stopped the trafficker for identity check. Details were obtained but arrest was not made on the spot. The Appellant was identified in the dock by PW3, despite objection from defence. PW4 also dock identified the Appellant – dock i/d by PW4 was not challenged by the defence at the trial. No identification parade was conducted as the Appellant objected to it. No alternative form of identification was conducted.

3. The Appellant sold cocaine to PW3 in May 2016. PW3 later countered the Appellant twice again, in June and July 2016:

(a) PW3’s 1^st Encounter: On 26 May 2016, at about 2359, outside the 7-Eleven at No.41, Douglas Street, Central, the Appellant (code named M24) approached PW3 and offered PW3 1 gram of cocaine at HK$1000. PW3 accepted the offer and paid the Appellant. The Appellant feared the presence of undercovers nearby and therefore led PW3 to the outside of another 7-Eleven at No.41 Wyndham Street, Central. The Appellant then took out a bag of white powder from his right leg sock and handed to PW3, who immediately put it into his right front trousers pocket. PW3 asked for the Appellant’s name, but the Appellant did not answer. PW3 then clapped his palm with the Appellant’s palm as a secret signal to PW4 to intercept the Appellant. PW3 then left, but stayed nearby, observing the Appellant from 4-5m away, and phone called PW4, informing him of the Appellant’s clothing. 5-6min later, PW3 saw PW4 and other colleagues intercepting the Appellant at No.41, Wyndham Street. At 0030 of 27 May 2017, PW3 handed over the seized bag to the Hong Kong Island Police Region headquarters, which later revealed that it contains 0.34 gram of cocaine.

(b) The 27 May 2016 encounter between PW3 and the Appellant lasted for about 7-8 min in total. PW3 had never met the Appellant before this incident. When they first met outside the Douglas Street 7-Eleven, they were only 2 to 2 and a half feet away from each other. PW3 conversed with the Appellant for about 1 min and PW3 looked at the Appellant’s face throughout that 1 min. PW3 could see the Appellant’s face clearly as there was sufficient light from the street lamps and very strong white light from the 7-Eleven. It took them about 45-60 seconds to move from the 1^st 7-Eleven to the 2^nd 7-Eleven; all the while PW3 followed the Appellant at a distance of about 1.5m, and PW3 never lost sight of the Appellant. Outside the Wyndham Street 7-Eleven, they stayed for about 30 seconds. PW3 could see the Appellant’s face clearly in these 30 seconds as there was sufficient light from the street lamps and very strong white light from that 7-Eleven. PW3 further observed the Appellant’s face for 5-6 min before PW4 intercepted the Appellant. PW3’s sight of the Appellant was never impeded.

(c) PW4’s Encounter: At 0001 on 27 May 2017, PW4 saw PW3 and the Appellant outside No.41 Wyndham Street standing at the staircase next to the 7-Eleven, and PW4 was standing 3-5m from them. PW4 saw PW3 clapped palms with the Appellant and then walked a distance of about 5m. PW4 received a phone call from PW3. At 0007 of the same day, PW4 approached and intercepted the Appellant and asked the Appellant to produce his proof of identity. The Appellant produced a Recognizance Form 8, which bore a photograph of the Appellant and the Appellant’s name, Badjie Malick.

(d) PW4 could see the Appellant’s face clearly and his sight was not impeded. There was sufficient lighting from the 7-Eleven and street lamps. Although there were people walking pass on the street during the 6 min between PW3 and the Appellant clapping palms and the interception of the Appellant, PW4’s sight was only intercepted for brief moments of 1-2s each time. The Appellant was all along in PW3’s sight.

(e) PW3’s 2^nd Encounter: On 24 June 2016 at about 0001, outside the same 7-Eleven at Douglas Street, PW3 was chatting with another African, named Bax. PW3 was also in his undercover duties at the time. The Appellant came to chat with Bax. Bax introduced PW3 as Smily to the Appellant, who introduced himself as Ross. PW3 asked the Appellant about the last time the Appellant sold cocaine to PW3, why the Appellant did not reveal his name when PW3 asked for it. The Appellant explained that he did not know PW3 was a friend of Bax, which was why the Appellant did not reveal his name. The Appellant then told Bax that he had an appointment with others and that he had to leave.

(f) This June encounter lasted for about 1 min. PW3 could see the Appellant’s face clearly in this 1 min as there was sufficient light from the street lamps and very strong white light from the 7-Eleven. PW3’s sight of the Appellant was never impeded.

(g) PW3’s 3^rd Encounter: On 7 July 2016 at about 10:00pm, PW3 was outside the 7-Eleven at Wyndham Street, continuing his undercover duties. There and then, an African name Solomon approached PW3 for a chat. Then, the Appellant came up to greet PW3 and said “Hay, Smily.” The Appellant then stayed there for about a minute before walking away.

(h) This July encounter lasted for about 1 min. PW3 could see the Appellant’s face clearly in this 1 min as there was sufficient light from the street lamps and very strong white light from the 7-Eleven. PW3’s sight of the Appellant was never impeded.

Defence’s Case

4. The Appellant gave evidence. He could not recall where he was on 27 May 2016. The Appellant seldom went to Lan Kwai Fong, he went there with his girlfriend once every 2 to 3 months. The Appellant recalled that his identity was once checked by 7-8 plainclothes in Lan Kwai Fong, 4 to 5 months before his arrest at his residence on 18 August 2016. But the Appellant could not recall in which street his identity was checked as he was unfamiliar with the area. Yet, the Appellant recalled that it was not outside any 7-Eleven, neither was there any staircase, and the place was not well lit. The Appellant did not pay any notice to whether there was a 7-Eleven nearby. On that occasion, the Appellant was not searched nor was any dangerous drugs mentioned. The Appellant has never been called Ross and he has been keeping a Rastafarian hairstyle since January 2016.

5. The Defence does not dispute that PW4 intercepted the Appellant. The Defence’s case was that somehow some mistake occurred during the 6min between the clapping palms and the interception of the Appellant. The Defence criticized:

(a) PW3’s evidence for

(i) Not mentioning his own nickname Smily in his witness statements;

(ii) Not mentioning the 2^nd and 3^rd encounters in his 1^st witness statement;

(iii) Not using marked money;

(iv) Not realizing that the pack of cocaine did not weigh 1 gram;

(v) Not realizing that the pack of cocaine did not worth HK$1000;

(vi) Not mentioning the Appellant’s built and Rastafarian hairstyle to PW4;

(vii) Observing the Appellant’s face under artificial light;

(viii) Every African male looked pretty much the much in Asian eyes;

(ix) The area was busy with Africans walking around and sometimes blocking the view of PW3, and PW3’s focus was diverted to calling PW4, PW3 must have lost sight of the drug trafficker in that 6min; and

(x) That the Appellant would remain outside the 2^nd 7‑Eleven after he had sold PW3 cocaine was unreasonable

(b) PW4’s evidence for:

(i) Lan Kwai Fong is a busy area;

(ii) The lighting was artificial;

(iii) The difficulty to distinguish one Africans from another, particularly at night;

(iv) PW4 said that he saw PW3 and the Appellant chatting, but it was not mentioned in PW4’s witness statement;

(v) PW4 speculated the position of PW3 in that 6min

(vi) PW4 could not see the whole face of the Appellant;

(vii) PW4 did not see any drug transaction;

(viii) PW4 was not told of the Appellant’s built or Rastafarian hairstyle; and

(ix) PW4 was not told that HK$1000 was given to the Appellant and PW4 need to search the Appellant.

6. The Defence also complained that there was no corroborative evidence to support witnesses’ identification, suchas CCTV, photographs of the Appellant, fingerprints on the white powder packet, marked money, clothes allegedly wore by the Appellant, or any admission.”

THE MAGISTRATE’S FINDINGS (AND ANALYSIS OF EVIDENCE)

3.The Magistrate has made a very thorough and detailed analysis of evidence in his Statement of Findings at paras 58 to 81:

“ Analysis of evidence

58. Facts admitted pursuant to section 65C of the Criminal Procedure Ordinance are conclusive evidence. I give full weight to these facts.

59. The first two prosecution witnesses were called to explainto the court why no identification parade or any other alternative was conducted prior to trial. The defence did not challenge their credibility too much. Although there was a dispute on whether the defendant had requested a lawyer, the objective fact was that no identification parade was held. Whatever the reason behind, the defendant was not obliged to attend any identification parade. That is his right. No adverse inference should be drawn from the fact that he refused to participate in an identification parade. Although Inspector PANG had failed to make arrangement to seek a court order to detain the defendant in a police station so that confrontation could be done, I accept that he was ignorant of the availability of such a measure. This is something about his competence and knowledge rather than his credibility.

60. No matter the reason why, it is common ground that not any form of identification was conducted prior to trial. However, this has become immaterial as this case was found to be one of recognition. Counsel for the defendant did not challenge this suggestion. She merely reminded the court that it was dangerous to rely on the evidence of the undercover constable and that mistakes occurred even in cases where people were asked to recognize close relatives and friends. I would bear this warning in mind throughout my analysis and assessment of the evidence. As I have directed myself, being the tribunal of facts, at the outset,this is a case in which the prosecution mainly relies on the evidence of identity. I would warn myself, being the tribunal of facts, of the special need for caution before relying on the evidence of identification. I have also warned myself that a mistaken witness could be a convincing one and that a number of such convincing witnesses could all be mistaken. I am also grateful that counsel for the defendant emphasized to me that the defendant was the only African male in court when dock identification was done by the undercover constable, who is an ethnic Chinese.

61. PW3, i.e. the undercover Constable TSANG, gave evidence in a straight forward manner. I have not observed any hint of evasiveness when he was being cross-examined. He frankly admitted that there were other Africans around when he met the defendant. He frankly admitted that people were walking on the busy streets of Lan Kwai Fong. One does not need to be smart to realize that such evidence might assist the defence in their argument that the police mixed up the defendant with the true culprit. Yet this constable did not tailor his evidence to weaken the obvious defence.

62. Counsel for the defendant criticized him for not mentioninghis own nickname Smily in his witness statements. He explained that he knew well of his own nickname and that needed not to be recorded. I find this explanation sound and reasonable. The main purpose of making a witness statement is to assist a witness in refreshing memory. One really does not need to spell out the obvious in one’s witness statement. If it is impossible for the constable to forget his own nickname during the operation, it is not unreasonable for him not to make a record of it. Counsel for the defendant also criticized him for not mentioning the 2^nd and 3^rd encounters with the defendant in his first witness statement. In fact, he did not make a statement to mention these two encounters until about 2 weeks before trial. This constable has already explained that the facts that he had encountered the defendant twice more had been recorded in the OB, which was updated on a daily basis. Counsel did not cross-examine him on his OB entries. It was not even put to him that there had not been such entries in the OB. I accept that the 2^nd and 3^rd encounters between the defendant and the constable are not recent fabrications. It is not rare that a police officer, who is not a legal expert, does not realize the significance or importance of a piece of evidence at first and therefore does not mention it in his first witness statement but eventually makes a supplementary statement to cover that piece of evidence when legal advice has been obtained or the case has been read by counsel.

63. I find this constable’s explanation on why no marked money was used, why the defendant’s hairstyle was not mentioned to PW4, why there was a lapse of some 6 minutes before the defendant was intercepted by PW4 and why he did not realize that the packet of cocaine did not weigh 1 gram and did not worth $1,000 to be cogent ones. I also accept that he could distinguish an African male from the others because he had been mixing up with African males over a long period of time. I accept that he acquired the ability to do so. Common sense and life experience tell us that one could even find it not difficult to distinguish twinswhen one has spent some time with the twins together. It is much easier to distinguish an African male from others of the same ethnicity.

64. Constable TSANG was thoroughly examined on every aspect of his evidence by a very experienced counsel and he was not shaken in the slightest degree. I accept that he has told the court the truth. I find him to be an honest witness. I shall deal with his reliability later.

65. PW4, i.e. Constable WONG, was cross-examined on his failure to record in his witness statement that he had seen the defendant talking to the undercover agent at Douglas Street. He claimed that it was not an important event. I do not agree. Knowing that the defendant had been stopped by himself as requested by the undercover agent, every move about this defendant must have been important. He claimed that it was not important because he had not recorded it in his witness statement. He even claimed that the fact would have become important had he mentioned it in his witness statement. This is complete nonsense and an affront to logic. To his credit, he subsequently admitted that it was not recorded because he had not seen it. He also admitted that he had speculated the position of the undercover agent when the defendant was left alone. I have serious doubt on the credibility and reliability of this constable. I do not believe him. I cannot accept his evidence as being the truth unless it is not challenged by the defence or there is other credible evidence to support his.

66. The defendant gave evidence on the incident in which he explained why the police had obtained his personal particulars. He told the court that he was not stopped outside any 7-Eleven shop. The spot where he was stopped was not well lit. If there had been a 7-Eleven shop nearby, he did not pay any notice to it. Nonetheless, counsel for the defendant accepted that he was the one being intercepted by PW4, i.e. Constable WONG, so that dock identification was not challenged. The defence is that somehow some mistake occurred during the 6 minutes between the clapping palms and the interception by police. Even if PW3, i.e. undercover Constable TSANG, had seen the drug trafficker on 3 occasions in May, June and July 2016, the defence says that the defendant was not that drug trafficker.

67. Firstly, his counsel did not put case to PW3, i.e. the undercover Constable TSANG, and PW4, i.e. Constable WONG, that the defendant had not been intercepted outside the 7-Eleven shop at Wyndham Street. His counsel did not put case to these two prosecution witnesses that the spot where he had been intercepted was not well lit. His counsel did not put case to these prosecution witnesses that there was no staircase nearby. Secondly, it is inherently improbable that defendant would have paid no attention to a nearby 7-Eleven shop, which must have been well lit and conspicuous, when, according to him, he walked twice the same route to and from the public toilet. His counsel, being a very experienced one, never sought leave of the court to re-call these two prosecution witnesses in order to put this part of the defence case to them as a result of her own negligence. I am sure that the defendant made this up after he had given full instruction to his counsel. He made up this piece of evidence in order to mislead the court into believing that the police observed his face under poor lighting and mixed his identity up with two other Africans.

68. I do not believe the defendant, despite the fact that he has a good character and a higher credibility. I reject his evidence as being the truth. Since he is not an honest witness, I also reject his exculpatory statement made under caution in the video interview. Although I do not believe the defendant, it does not mean that he is guilty. On the contrary, he is presumed innocent. He has no burden of proof. The burden of proof is entirely on the prosecution and the standard of proof is one of beyond reasonable doubt.

69. As stated above, I believe the evidence of PW3 the undercover Constable TSANG. However, it does not necessarily follow that he is a reliable witness. Counsel for the defendant criticized his evidence as being unreliable.

70. Counsel commented that it did not make sense at all for the defendant to remain outside the 7-Eleven shop at Wyndham Street after he had already sold cocaine to the undercover agent. I disagree. The defendant departed from Douglas Street because he thought there were police officers, i.e. CIDs, at Douglas Street. He stopped at Wyndham Street to complete the drug transaction. He must have thought Wyndham Street to be a safer place so that he could expose the packet of cocaine and pass it to the undercover constable there. Therefore, it makes complete sense for the defendant to stay in that place where he considered safe.

71. Counsel complaint that every time the constable observed the face of the man M24 or Ross was under artificial light only. In my view, that does not make the observation any way inferior to one made under natural light. The entire court room has been light up by artificial light and I do not imagine any sensible person would have said all those dock identifications made in this court room in the past decades would therefore have become unreliable. This complain is groundless.

72. Counsel for the defendant insisted that the undercover Constable TSANG must have lost sight of the man M24 or Ross during the 6 minutes before the defendant was mistakenly intercepted by PW4. It is because the area was busy with Africanswalking around and sometimes blocking the view of this constable, who also had to focus on the phone when dialing the call to his colleague. The constable denied that he had ever lost sight of the defendant before he was intercepted. In my view, this officer wasinstructed to engage in an undercover operation. He did not need to be a genius to know that part of his duty was to recognize the faces of each and every suspect. That was why he kept an eye on the defendant even when he was dialing the phone. That was why he had not left the scene until he was satisfied that the defendant had been correctly intercepted by his colleague.

73. As Power J.A. (as he then was) stated when giving the judgment of the Court of Appeal in The Queen v LEE Ho Wai, CACC 379 of 1988, unreported, at page 8:

‘ Firstly, this was a police officer on surveillance duty.  This is an important fact.  Such a person cannot be equated with a person, such as a robbery victim, who is, almost inevitably, off balance and under stress.  In circumstances such as occurred in the present case the jury would be entitled to proceed upon the basis that the police officer was making his observation in a calm and concentrated way.”

74.   Furthermore, the conversation between the defendant and the undercover agent when they met again on the 2^nd and 3^rd occasions support the fact that the constable has not mistaken in recognizing him.  If the defendant had not met the constable before, he would not have understood on 24^th June 2016 why the constable complained that he had not told him his name on the previous occasion.  If the defendant had not met the undercover agent on 24^th June 2016, he would not have been able to greet him by saying his name Smily on 7^th July, 2016.  These facts support the conclusion that the undercover agent’s observation on the defendant’s face was good enough to the extent that he could recognize the defendant each and every time without any mistake.

75.   I find Constable TSANG to be a reliable witness.  I give full weight to his evidence.  I accept that he has told the court the whole truth.  His evidence on identification can be summed up below.  On three occasions spanning the 26^th May 2016 and 7^th July 2016, the constable saw the defendant on three occasions.  On the first occasion, he saw the defendant’s face clearly at a distance of about 2 and a half feet away under good lighting condition with the source of light from street lamps and 7-Eleven shop.  His sight was not impeded.  About a month later on the second occasion, he saw the defendant’s face clearly at a distanceof about 1 metre away under good lighting condition with the samesources of light.  His sight was not impeded.  He also talked to the defendant. About 2 weeks later on the third occasion, he saw the defendant’s face clearly at a distance of about 1 metre away under the same good lighting condition.  The defendant greeted him.  His sight was not impeded.

76.    There were slightly more than 7 months from the time the undercover agent last saw the defendant to the time dock identification was done in court.  I am satisfied that the time lapsewas not too long for the undercover agent to forget the defendant’s face.  I am aware that the defendant was the only African male in court when dock identification was done.  However, this is a case of recognition in which the undercover agent was merely asked to confirm that the man who appeared in court was the one whom he recognized.  I do not see any unfairness merely because the defendant was the only African in court.

77.    I remind myself that a mistaken witness could be a convincing one.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made.  However, I am still satisfied that the evidence on identification in this case is so good that Constable TSANG could not have been mistaken.  Constable TSANG must have observed the defendant’s face in a calm and concentrated way.  Constable TSANG saw his colleague, i.e. PW4 Constable WONG, intercepting the defendant before leaving the 7-Eleven shop at Wyndham Street on 27^th May 2016.  I am satisfied that Constable WONG intercepted the defendant and obtained his personal particulars from his Recognizance Form 8.  I have carefully considered the submission advanced on behalf of the defendant. Nonetheless, I find no reasonable doubt on the evidence of identification.  I am sure that Constable TSANG recognized the defendant in court not because he was the only African male who appeared.  I am sure that Constable TSANG really recognized the defendant as the one who sold the packet of cocaine to him outside the 7-Eleven shop at No. 41 Wyndham Street on 27^th May 2016.

78.    For the avoidance of doubt, I make it clear I have not drawn any adverse inference from the defendant’s admission in his evidence that he was arrested together with Bax.  There is simply no evidence that the Bax who talked to the undercover agent on 24^th June, 2016, was the same Bax who was arrested.

79.    Counsel for the defendant complains that there was no CCTV evidence to show the drug transaction between the defendant and Constable TSANG.  There was not even a photograph showing the act of the defendant.  She complained that there was no fingerprint found on the packet. The defendant made no admission.  No marked money was found. The blue shirt allegedly worn by the defendant at the night of the offence was never found and produced in court.  No dangerous drug was found when the defendant was arrested.  In short, she makes the point that only evidence of identification is left in the entire prosecution case.  What she says is true.  However, given the nature of the undercover operation and the cogent explanations given by Constable TSANG when he was cross-examined, I do not think that the submission advanced on behalf of the defendant has cast any reasonable doubt over the prosecution case.

80.    As the House of Lords states in their judgment in the leading case R v Turnbull (1976) 63 Cr. App. R. 132, at page 138,

‘ A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.’ (my bold type)”

4.The Magistrate properly directed himself in respect of the burden and standard of proof required at para. 8 of the Statement of Findingsand gave the Appellant’s good character direction in terms of credibility and propensity to commit crimes at paras. 9 – 10.  At para. 11, he also warned himself of the special need for caution before relying on the evidence of identification and that mistakes in recognition of close relatives and friends are sometimes made and that the case before him involved the identification by a constable of Chinese ethnicity on an accused of African ethnicity.

5.As can be seen from the paragraphs cited, the Magistrate has evaluated the evidence of the undercover police officer PW3 at length and acceptedhis evidence with reasons given.  He was satisfied beyond reasonable doubt that PW3 has correctly identified the Appellant as the man who sold the bag of cocaine to him for $1,000 at Wyndham Street, Central outside a 7-Eleven shop on 26 May 2016.

6.The Magistrate has also evaluated the case of the Appellant but he rejected his evidence and also his explanation made under caution in the video interview.

GROUNDS OF APPEAL

7.Mr. Philip Ross, counsel for the Appellant, has raised two grounds of appeal in this hearing, namely:

(1)   In the light of the circumstances that the Appellant was arrested around 3 months after the offence alleged, and that there was no evidence to support the evidence of the undercover officer, PW3, of the offence alleged, the learned Magistrate erred in failing to warn himself that it would be dangerous to convict on the evidence, unless with great care considering the circumstances relevant to its evaluation, and paying heed to the warning, the learned Magistrate was satisfied as to the truth and accuracy of PW3’s evidence.

(2)   The Appellant has not received a fair trial since the learned Magistrate erred in finding PW3 a truthful witness before considering the evidence of the Appellant, and later disbelieving the evidence of the Appellant because it was inconsistent with the evidence of PW3.

Ground (1)

8.Mr. Ross has submitted, as his first ground of appeal, that the Appellant was prejudiced in his trial because there was a delay of some 3 months between the date of the offence and the date at which the fact that a complaint had been made came to the attention of the Appellant.  As a result of the delay in proceeding against the Appellant, lines of enquiry for the Appellant were closed either because independent evidence such as CCTV footage showing the outside of the 7-Eleven shop would be no longer available, or that any witnesses at the scene of the alleged cocaine sale cannot later be traced.

9.On the other hand, Mr. Ross criticized the police of failing to covertly record the alleged sale of cocaine.  There was no fingerprint found on the packet of drugs and no marked money was used.  The blue shirt allegedly worn by the Appellant at the time of the offence was never found and produced in court. In short, the only evidence left in the entire prosecution case was the purported identification by PW3 of the Appellant without any corroboration.

10.Mr. Ross referred to the practice of the Australian courts where the High Court of Australia has held that juries must be given a warning, called a Longman warning, where the evidence of a complainant may be unreliable, and may be given where the prosecution depends on the evidence of one witness (Longman v R (1989) 168 CLR 79, 107 per McHugh J).  The Longman direction may be given, even where there is corroborative evidence, and even where the prosecution was not for sex offences.

11.Mr. Ross complained that the Magistrate appeared not to have appreciated the significance of delay in arresting the Appellant.  Even though the delay in this case was small compared to those relying on a Longman direction, it is submitted that the delay coupled with the lack of supporting evidence and further coupled with the fact that corroborative evidence could have been obtained if the police wanted, has made this case one where a Longman direction or a direction along this line was required.

12.It is submitted that the Magistrate should have directed himselfthat it was dangerous to convict on this evidence alone unless by scrutinizing the evidence with great care, considering the circumstances relevant to the evaluation of the evidence and paying heed to the warning before satisfying himself as to the truth and accuracy of PW3’ s evidence.

13.Mr. Ross complained that the Magistrate did not give himself this warning and did not, from the verdict, scrutinize the evidence with the care that such a warning requires. The Magistrate was not left with a full appreciation of the danger of convicting on PW3’s evidence alone, which was to risk a miscarriage of justice.  It is submitted that the conviction is thereby unsafe.

DISCUSSION

14.The first matter to note in the above submission, as also properly conceded by the Appellant, was that even the defence counsel failed to point out and specifically relied on delay of the arrest in her final submission to the Magistrate at trial.  The Magistrate nevertheless had already considered that there was no corroborative evidence to support the identification other than PW3’s and PW4’s visual identification.  Citing the House of Lords in R v Turnbull (1976) 63 CR App R 132, at page 138, the Magistrate had considered the effect on criminal activity and the maintenance of law and order if no person can be convicted without corroborative identification evidence.

15.I fail to see how the Appellant could still complain that the Magistrate was not adverted to the danger of convicting the Appellant on the identification evidence alone and did not scrutinizing the evidence with great care.  On the contrary, in para. 79 of his Statement of findings (seepara. 4 above), it is clear that the Magistrate has already recited in details the lack of corroborative evidence in this case as submitted by the counsel for the defendant and even correctly acknowledged the fact that the entire prosecution case hinged on the identification evidence alone.  Despite the lack of corroborative evidence, the Magistrate, after seeing and hearing the evidence given by the undercover officer PW3, was obviously impressed with his evidence and the cogent explanations given by him under cross-examination and came to the conclusion that he was telling the truth and his identification of the Appellant based also on subsequent recognitions could not be faulted.

16.Where the facts are concerned in an appeal by way of rehearing on the papers, it is to be remembered that, as Bokhary PJ (with whom other members of the Court agreed) said in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at p 78E–F, “the appellate tribunal will recognise thatit does not enjoy the advantage of having received the evidence at first‑hand”.  The Magistrate has therefore the advantage of hearing and seeing the witnesses and no doubt he was in a better position to determine witnesses’ credibility and the appellate courtwill not interfere the trial judge’s factual findings unless he is demonstrated to be plainly wrong.

17.I entirely agree with Mr. Sean’s submission in reply that PW3’s identification evidence was strong.  PW3 met the Appellant for 3 times, and the encounters lasted 7 – 8 minutes, 1 minute and 1 minute respectively.  In every encounter, the Appellant approached PW3 and conversed with PW3.  In every conversation, the Appellant and PW3 were standing closely together. PW3 could see the Appellant’s face clearly without impediment and the lighting was sufficient.  In the second encounter, the Appellant and PW3 even conversed about their first encounter (the occasion when the Appellant sold PW3 cocaine).  And in the third encounter, the Appellant even identified PW3 first.  Also, PW3 had spent time long enough to distinguish one African from another.  The evidence is strong and clear that PW3 had correctly recognized the Appellant in the dock.

18.As to the possible so-called missing evidence caused by the delay and its potential prejudice caused to the defence, the starting point for discussion must be that the delay in this case is by no means long, only over 3 months whereas in all the Australian cases relied on by the Appellant where the Longmanwarning was said to be required, the delay was far much longer and serious interms of years. What is more, the disadvantages suffered by the Appellant through the delay has never been the subject-matter of complaint by the counsel of defence during the trial.  There was even no application of stay on this ground ever made to the Magistrate and therefore how is it possible now for the Appellant to turn round and say that he was so prejudiced by the unavailability of the missing evidence such as the CCTV recordings? One must not remember that the police does not has a duty to seize the CCTV footage and the fact remains that no one has ever viewed the CCTV footage and it remains a speculation that there was indeed such a CCTV footage which captured the alleged transaction. The absence of fingerprint or DNA evidence in the packet of drug is neither here or there and again is of no evidential value.

19.This ground fails.

Ground (2)

20.In this ground, Mr. Ross’s chief complaint was that the Magistrate has accepted PW3 as a truthful witness even before considering the evidence of the Appellant.  Obviously, he based his criticism on what was written by the Magistrate because at the conclusion of his assessment of PW3’s evidence at para. 64 of the Statement of Findings (see para. 4 above), the Magistrate said:

“ I accept that he has told the court the truth.”

21.Mr. Ross emphasized that by this stage, the Appellant’s evidence had not been considered.

22.Mr. Ross submitted that the Magistrate should have set out his verdict by first reciting the evidence of both PW3 and the Appellant.  He then decided whether he accepted PW3's evidence as truthful or not, and if accepted, determine whether the Appellant's evidence undermined PW3's evidence.  As it is, the Magistrate considered PW3 as a truthful witness before considering what the Appellant's evidence was.  Then, the Magistrate disbelieved the Appellant simply because it did not match PW3's evidence.  It is submitted that the Magistrate should only come to the finding that PW3 had told the truth only after considering all the evidence in the case.

23.To conclude, it is submitted that the Magistrate has not approached the evidence in the case in an unbiased way, giving rise to a real danger that the Appellant might not have had a fair trial (see HKSAR v Chiu Mei Kwan [2014] 4 HKLRD 178 at para 24).

24.In reply, Mr. Sean reminded me of what was said by Ribeiro PJ of the Court of Final Appeal in HKSAR v Chiang Lily FAMC 20/2013 (unreported) at p 6 para 14:

“ 14. Where, as in the present case, it is sought to overturn findings as to the credibility of witnesses whose evidence the Judge has had the advantage of assessing at first hand, leave will not be granted unless it is shown to be reasonably arguable that the Judge was plainly wrong to have found the witnesses in question to be credible, even if there may be room for some doubtas to the correctness of the finding.¹¹ ”

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¹¹    Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42; HKSAR v Egan (2010) 13 HKCFAR 314 at §§194–195.

25.The Respondent submitted that a professional judge is presumed to have assessed evidence in a professional manner and to have applied the correct legal principles.  As stated by Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen trading as Tam Dick Yuen Engineering and others (2002) 5 HKCFAR 336 (at p 348I–J):

“ 37. …Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.”

DISCUSSION

26.I accept the correctness of the Appellant’s proposition as to the approach of assessing the credibility as a matter of general principle.

27.Attention must, however, be drawn to the above authorities cited by the Respondent and when there is any doubt as to the correctness of the findings of the credibility of the witnesses including of the defendant, the appellate court would recognize that the trial Magistrate has enjoyed the advantage of seeing and hearing the witness first-hand and would not interfere with his findings lightly unless he is shown to be plainly wrong.

28.In this case, therefore, unlike the Appellant, I would be more focused on the “substance” rather than the “form” of the Statement of Findings written by the Magistrate.

29.Reading the Statement of Findings as a whole, I would not say that the Magistrate assessed the credibility of individual witness including the Appellantnot in accordance with the established legal principles.  It is true and perhaps unfortunate that it looks as though the Magistrate has made a finding of the credibility of PW3 well before he has come to analyze the evidence of the Appellant.  However, there is no good reason to doubt this experienced judicial officer of failing to have made an overall assessment of all the evidence before he came to his conclusion as to whether he accepted or rejected the evidence of an individual witness.  If anything, this misunderstanding was attributed or compounded by the style of judgment writing when the Magistrate has set out his assessment of each prosecution and defence witness one by one.  In so doing, towards the end of the assessment of each witness, it is true that he said he accepted or rejected the evidence of, say PW3 and PW4, as the case maybe, as he went along but that does not, in my judgment, necessarily mean that his thinking process was so mechanical and that his final conclusion of the credibility of a witness was not reached before he has fully considered the overall evidence of the case, including that from the defence, as a whole.

30.Bearing in mind that the Magistrate in the present appeal is also an experienced professional judicial officer, it cannot be shown that he made any error in law in his assessment of the credibility of the witness.

31.Ground 2 also fails.

ORDER

32.The grounds of appeal are without merit and the appeal against conviction is dismissed accordingly.

Mr. Eddie Sean, SADPP of the Department of Justice, for the Respondent

Mr. Philip Ross, instructed by Mohnani & Associates, assigned by Director of Legal Aid, for the Appellant