HKSAR v. Pang Yiu Ming

DCCC 627 & 1068/2017

[2018] HKDC 430

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 627 & 1068 OF 2017

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REASONS FOR VERDICT

1.D6 pleads not guilty to one joint charge of trafficking with Cheung Pak Long (D1) in 2.96 grammes of herbal cannabis, contrary to section 4 of the Dangerous Drugs Ordinance[1]. D1 pleaded guilty to the charge at the beginning of the trial.

Prosecution case

2.In summary the prosecution case is that between June and December 2016 PC 18104 acted as an undercover police officer in an operation to combat the trafficking in dangerous drugs in the Yuen Long area. 

3.On 11 September 2016 PC 18104 went to the Moses Bar in Yuen Long where he met Cheung Pak Long (D1).  PC 18104 and D1 went to the back alley behind the Moses Bar where D1 introduced PC 18104 to D6 for the purpose of buying cannabis.  PC 18104 paid D6 $700 and D6 gave PC 18104 a bag of cannabis. 

4.D6 was arrested on 2 October 2017.  PC 18104 identified D6 in an identification parade held on 18 October 2017.

Defence case

5.The defence case as put in cross-examination is that the defendant did not give PC 18104 any drugs and that PC 18104 and D1 are mistaken in their identification of D6.

6.The defence objected to the admissibility of the identification parade evidence.

Evidence

7.The alternate procedure was adopted.  The prosecution called three witnesses PC 18104 (PW1); Cheung Pak Long (PW2/D1) and WCIP Chan Shuk Fun (PW3), who conducted the identification parade. 

8.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including the analysis of the drugs[3]; the chain of evidence[4]; photograph of the drugs[5]; the arrest of the defendant and a video recorded interview[6]. 

9.The defendant elected to give evidence on the special issue only.  No witnesses were called on his behalf on either the special issue or the general issue.  No adverse inference is drawn against the defendant for remaining silent on the general issue.  That is his right.  This proves nothing one way or the other. This does not establish his guilt.

10.Admitted in evidence is that the defendant has a clear record[7].  I direct myself as to good character of the defendant in accordance with the decision in HKSAR v Tang Siu Man[8].

11.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

12.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

13.I have carefully considered all the evidence and the submissions of Mr Raffell[9] and Mr Li. 

Identification parade

14.I will first give my reasons for ruling the evidence of the identification parade admissible in evidence.

15.On 18 October 2017 PC 18104 attended an identification parade at the Tai Po Police Station where he identified the person standing at No. 1 as Ah Ming.  The defendant was standing at position No. 1.

16.The defence objected to the admissibility of the identification parade as particularised in the grounds of objection submitted by Mr Li[10].  In summary the grounds of objection were that WCIP Chan refused the defendant’s request that everyone sit down thereby rendering the parade unfair because the defendant was considerably taller than the other actors. 

17.The identification parade was recorded on video (exhibit P7).  Apart from the evidence of PC18104 that he identified the defendant at the parade the prosecution called WCIP Chan, who gave evidence about the conduct of the parade.  The defendant elected to give evidence.

WCIP Chan

18.The relevant part of the video relating to the grounds of objection is between 15:01:10-15:01:20 when the defendant turns round after putting his jacket down and walks back to position No. 1.  What the defendant said is very difficult to hear.  The response of WCIP Chan is a little clearer.  No transcript of the parade was provided to the court. 

19.The relevant part of the video was played to WCIP Chan to see if she could hear what was said.  After the video was played for the first time WCIP Chan said she could not quite hear what the defendant said. 

20.The video was played again.  WCIP Chan again said she could not quite hear clearly.  Asked by Mr Raffell whether she could remember what was said at that time, WCIP Chan replied that “My apologies, maybe I am too occupied with other things.  I can’t remember”. 

21.After the video was played for a third time WCIP Chan said she could hear the defendant say, “He want to sit” or something like that and that her reply was “Put down the clothes first”.

22.After the fourth time of playback WCIP Chan said she could hardly hear the word “sit”.  Asked by Mr Raffell whether the playback refreshed her memory of what the defendant said to her, WCIP Chan replied, “Maybe I was too occupied with other things such as change/the alteration of wearing the glasses or shower cap, things like that, so I did not quite remember that he said he want to sit”. Asked whether she now remembered if the defendant asked if he could sit, WCIP Chan replied, “He may ask that”.   

23.In cross-examination WCIP Chan said she did not pick up at the time the defendant requested to sit down but having watched the video said that the defendant might have made that request because she could pick up from the video the word ‘sit’. WCIP Chan said that without looking at the video she did not remember what was said by the defendant and what was her response.

24.In cross-examination both PC 18104 and WCIP Chan disagreed that D6 was the tallest of the persons on the parade.  WCIP Chan said she recalled that the actors put beside the defendant were more or less the same height.  When Mr Li put that not all the actors were the same height as the defendant, WCIP Chan explained that she remembered that one or two of the actors were about 2-3 cm shorter than the defendant therefore she moved the shorter one to the other side of the parade.  WCIP Chan identified this on the video as occurring between 15:04:45 and 15:05:03 when the actor at position No. 4 changed with the actor at position No. 8. 

25.WCIP Chan disagreed that the defendant really stood out because he was the tallest and by reason of the difference in height with the other actors.  WCIP Chan explained that she found no big difference in the height of the actors and the defendant and said that if she had found a considerable difference she would have asked them to sit down as she had done in an earlier identification parade she had conducted[11].

Defence evidence

26.The defendant, aged 19 and in full time employment[12], elected to give evidence.  The defendant had never been arrested by the police before or been invited to a police station for police investigation, including attending an identification parade. 

27.In summary the defendant said that he was the tallest amongst the persons on the parade and therefore told WCIP Chan that he wanted everyone to sit down.  WCIP Chan told the defendant to put on the jacket first.

28.In cross-examination when put that the video showed that everyone was roughly of the same size, the defendant replied that a couple were a bit shorter and a few were of similar height. 

29.The defendant did not repeat his request again because he thought WCIP Chan would handle his request after putting the jacket on.  By the time the witness came in the room the defendant did not repeat his request because he had been told not to move around and therefore he thought he should not talk too much.  At the end of the parade the defendant did not complain because he thought the procedure was over and there was no point saying anything further.

30.The defendant felt the parade was not very fair because this was the only request he made to which he was given no answer.  The defendant said that if he had been told his request was rejected he would have refused to participate in the parade. 

31.In cross-examination when put that he knew the identification parade was important the defendant replied that he did not think the parade was that important and that was why he did not engage a lawyer.

Ruling

32.WCIP Chan being unable to remember if the defendant made the request I proceeded on the basis that the defendant requested everyone to sit down.  The response by WCIP Chan “put down your clothes first/put on your jacket first” was suggestive the defendant did make a request.

33.Although a request was made I nevertheless had no hesitation in rejecting the defendant’s evidence that he would have refused to take part in the parade if he had been told his request was refused and that he did not think the parade was that important. 

34.In answer to the court the defendant said he understood the purpose of the parade was to see if the witness could identify him as being involved in trafficking in drugs.  Notwithstanding the defendant’s young age and that he had never been arrested or attended an identification parade before, it beggars belief the defendant did not think the parade was that important.

35.I rejected the defence contention that the defendant was considerably taller than the other actors thereby rendering the parade unfair. 

36.I accepted the evidence of WCIP Chan that she explained the identification procedure to the defendant, including asking the defendant whether he wanted legal representation and whether he was willing to participate in the parade. The defendant did not require a lawyer and was willing to participate in the parade.  In cross-examination the defendant confirmed he agreed to participate in the parade; that he knew participation was voluntary and that he did not require a lawyer.

37.Ten actors were selected for the parade by the actor’s company.  WCIP Chan explained that the actor’s company was asked to find actors based on the age and height of the suspect.  Only eight actors were required to stand on the parade.  The defendant was therefore allowed to exclude two of the actors.

38.Between 14:58:59 and 14:59:26 the defendant is seen choosing the actors standing at position No. 3 and No. 5[13]. In cross-examination the defendant confirmed he excluded the two actors who were least like him.

39.The eight remaining actors then stand behind numbers 2-8.  Between 14:59:50 and 15:00:15 the defendant selects position No. 1 and at the same time the actor at position No. 2 changes position with the actor standing at position No. 8. 

40.The defendant and the actors all then put on the same black plastic jackets; shower caps and plastic glasses.  WCIP Chan said the idea to put on shower caps was hers because she noticed the defendant had longer hair.  Similarly, the wearing of jackets and glasses was the suggestion of WCIP Chan. 

41.As noted earlier in cross-examination WCIP Chan explained that she remembered that one or two of the actors were about 2-3 cm shorter than the defendant therefore she moved the shorter one to the other side of the parade.  WCIP Chan identified this on the video as occurring between 15:04:45 and 15:05:03 when the actor at position No. 4 changed with the actor at position No. 8.  

42.WCIP Chan asked the defendant if he had any objection to the actors. The defendant said the actors were OK.  In cross-examination the defendant confirmed he agreed that he had no objection to the actors.

43.Notwithstanding WCIP Chan did not reply to the defendant’s request, whether because she did not hear or forgot about the request, having carefully considered all the evidence, the submissions of Mr Li and viewed the video of the identification parade, I was nevertheless satisfied beyond reasonable doubt that the parade was conducted fairly.  I found no grounds to exercise my discretion to exclude the evidence.

44.In ruling the identification parade evidence admissible no adverse inference was drawn from the defendant’s failure to complain about the conduct of the parade.  After PC 18104 made the identification WCIP Chan explained to the defendant he had been positively identified.  WCIP Chan cautioned the defendant.  Under caution the defendant had nothing to say.  WCIP also asked the defendant if he had any comment on the way the parade was conducted.  The defendant replied no.  The defendant was entitled to exercise his right to silence.

Prosecution evidence

45.The following is a summary of the prosecution evidence on the general issue. 

PC 18104 (PW1)

46.In summary PC 18104 testified that between June and December 2016 he acted as an undercover police officer in an operation to combat trafficking in dangerous drugs in the Yuen Long area. 

47.PC 18104 was briefed by his ‘handler’ DSgt 1247[14] as to his conduct when carrying out the operation.  PC 18104 used the name ‘Ah Jeet’. Throughout the operation PC 18104 did not induce others to commit any drug related offence. 

48.As part of the operation PC 18104 regularly frequented the Moses Bar at 70 Shui Che Kwun Street where he met D1, who he knew as Ah Long.  At 7.55 p.m. on 11 September 2016 PC 18104 went to the Moses Bar.  On arrival he met Ah Long who introduced him to a friend called ‘Fei Kei Chai’.  The three of them then went inside the bar to have a drink.

49.At 8.08 p.m. Ah Long asked PC 18104 whether he smoked ‘weed’.  PC 18104 understood ‘weed’ to mean cannabis.  PC 18104 indicated he did smoke ‘weed’ whereupon Ah Long pointed to a male staff member working at the bar counter saying that he had means to get cannabis.  

50.About one to two minutes later PC 18104 and Ah Long went out to the alley at the back of the Moses Bar.  In the alley Ah Long pointed to the male who had been behind the bar counter and said he was called ‘Ah Ming’. 

51.Ah Ming immediately said to PC 18104, “Four grammes, $700.  Want it or not?”  PC 18104 replied, “Good”.  PC 18104 then gave Ah Ming one $500 banknote and two $100 banknotes. After Ah Ming took the money he took a bag of cannabis from his right front trouser pocket and gave the bag to PC 18104.  After checking the bag PC 18104 put the bag in his left rear trouser pocket after which the three of them went back in the bar where Ah Ming continued his work.  After staying five minutes PC 18104 left the bar. 

52.PC 18104 identified the bag of cannabis as the bag shown in the photograph, exhibit P4. 

53.In court PC 18104 identified the defendant as Ah Ming.  The defence objected to the dock identification.  The identification in court was not a first time identification.  PC 18104 having identified the defendant in the identification parade I overruled the objection.  

54.In further cross-examination PC18104 said he only made a record of what happened when he returned to the safe house[15].

Cheung Pak Long (PW2/D1)

55.In summary D1 testified that at the beginning of the trial he pleaded guilty to several offences of trafficking in dangerous drugs involving undercover police officers. 

56.On 11 September 2016 in the Moses Bar in Yuen Long D1 had dealings with one of the officers named “Ah Jeet”.  D1 used to work in the Moses Bar as a waiter in July and August 2016.  By 11 September 2016 D1 was no longer working at the bar and was there as a customer.   

57.D1 drank alcohol with Ah Jeet and Fei Kei Chai.  While chatting Fei Kei Chai mentioned he would take cannabis after drinking.  Out of curiosity D1 asked Ah Jeet if he wanted cannabis.  Ah Jeet replied yes. 

58.In cross-examination D1 said that prior to 11 September 2016 he had never asked Ah Jeet whether he used dangerous drugs and had never suggested he could arrange to supply to Ah Jeet dangerous drugs. 

59.D1 then helped Ah Jeet to see if someone had cannabis for him.  D1  got a positive answer from Pang Yiu Ming, a bartender at the Moses Bar, who D1 knew as Ah Ming[16].  D1 came to know Ah Ming when he returned as a customer after finishing working at the Moses Bar.  In answer to the court D1 said that when he went to the bar Ah Ming introduced himself and said he was called Ah Ming[17].

60.D1 had met Ah Ming more than once but could not recall how many times he had met him and said that it was probably more than two times.  D1 had not known Ah Ming for a long time and was not sure how long he had known him.  When D1 met Ah Ming in the Moses Bar he would have conversations with Ah Ming. 

61.After 11 September 2016 D1 met Ah Ming in the street but could not recall if he met him in the bar.  D1 also met Ah Ming in court. 

62.In court D1 identified the defendant as Ah Ming.  The defence objected to the dock identification.  Although no identification parade had been held, the identification by D1 was not of a stranger, I therefore overruled the objection.  

63.Ah Ming told D1 that he took cannabis.  D1 asked on behalf of Ah Jeet if Ah Ming could supply him any cannabis.  Ah Ming mentioned the price but D1 could not quite remember the price and said that it was around $700.  Ah Ming then told D1 to wait for a moment. 

64.In cross-examination D1 said this was not the first time he had asked Ah Ming about cannabis and said that they had talked about cannabis before but could not recall when that was.  D1 explained he asked Ah Ming again because he wanted to help Ah Jeet get some cannabis.  D1 agreed there was no mention in his non-prejudicial statement that he had discussed cannabis with Ah Ming prior to 11 September and no mention that he also asked Ah Ming on 11 September if he took cannabis.  

65.After a while D1 was asked to go to the back alley of the bar.  D1 asked Ah Jeet to go with him.  In the alley D1 introduced Ah Ming and Ah Jeet to each other after which the two of them trade.  D1 was prepared to leave and waited for them to finish the transaction before going back to the bar together.  D1 did not actually see the transaction.  Ah Jeet came over to D1 and said it is sorted.  They then went back into the bar together. 

66.In cross-examination D1 said he could not remember if he heard any conversation between Ah Jeet and Ah Ming.  At the end of cross-examination D1 said that they stayed in the alley for only a short time, within two to three minutes.  Asked whether he looked at them during this time D1 replied that initially when he introduced them he did look at them and afterwards when he was prepared to leave he was facing the door.

Video recorded interview

67.Admitted in evidence is that the defendant gave a voluntary video recorded interview[18].  In the interview the defendant said, inter alia, that his friends usually call him Ah Ming[19]; he did not know a person called Ah Jeet and did not receive any money from Ah Jeet[20]; and that between 7 p.m. and 9 p.m. on 11 September he was working as a bartender in the Moses Bar on Shui Che Kwun Street[21].

68.The defendant exercised his right to silence when asked if he knew Cheung Pak Long[22]; whether he had anything to say about the drug transaction for which he was cautioned[23] and whether he was in the bar all the time; ever left the bar or got in touch with anybody[24].  No adverse inference is drawn against the defendant for exercising his right to silence in respect of some of the questions. 

69.I have considered both the inculpatory and exculpatory parts of the interviews, in accordance with the principles in R v Sharp[25].

Discussion

70.I have carefully considered all the evidence and the submissions of Mr Li.

Credibility of D1 (PW2)

71.In cross-examination D1 said that one of the reasons he was giving evidence was that he may receive a reduction in sentence.  D1 was not asked what the other reasons were.

72.In considering the truthfulness and reliability of D1’s evidence I remind myself of the possibility that D1 may be lying in order to obtain a sentence discount[26].  I also take into account that D1 has two previous convictions for drug offences in 2015 for which he was sentenced to DATC. 

73.I approach the evidence of D1 with caution.

74.Mr Li submits that D1’s evidence in cross-examination that he met D2 and D3 shortly before he gave his non-prejudicial statement was rather suspicious and dodgy, in particular his denial that he said anything about the case to D2 and D3. 

75.In cross-examination D1 said that he invited D2 and D3 to meet.   D2 and D3 talked about the case to D1 but D1 did not talk about the case to D2 and D3.  In answer to the court when asked what was the purpose of the meeting D1 said he only invited D2 to meet to talk about cars and that D3 was also present at the meeting[27].

76.D1 disagreed that he told D2 and D3 that he would become a prosecution witness and disagreed that he tried to influence D2 and D3 to plead guilty.   D1 said he did not invite D6 because he was not talking about the case. 

77.The fact D1 met D2 and D3 shortly before he gave his non-prejudicial statement to the police does not cause me to doubt D1’s evidence about what happened on 11 September 2016, which evidence did not relate to either D2 or D3. 

Trafficking in a dangerous drug

78.Mr Li submits that D1’s evidence about the supply of cannabis is strange, suspicious and not reasonable, in particular D1’s evidence that after introducing Ah Jeet to Ah Ming he did not see the actual transaction and in cross-examination said that he did not hear any conversation in the alley between Ah Jeet and Ah Ming. 

79.Mr Li submits that it was strange that D1 out of curiosity asked PC 18104 if he took cannabis, D1 having never asked prior to 11 September 2016 whether PC 18104 used dangerous drugs or suggested to PC 18104 he could arrange to supply dangerous drugs. 

80.Mr Li submits that it is very unreasonable and very strange for D1, knowing cannabis is a prohibited drug, to take the risk and arrange the supply of cannabis to PC 18104, in particular there being no evidence that D1 received any benefit for making the arrangement.  Mr Li also submitted that D1’s answer in cross-examination that he did not know arranging the supply of cannabis was illegal, was a very shifty answer. 

81.Mr Li submits rather more strange is that cannabis was supplied in the back alley when all the other charges concern ice or cocaine and were committed at a place other than the Moses Bar or the back alley.  Mr Li submits this casts doubt or suspicion on the evidence. 

82.Mr Li also draws to the attention of the court matters which were not included in D1’s non-prejudicial statement, including that D1 made no mention of talking to D6 about cannabis prior to 11 September 2016[28].

83.In cross-examination when Mr Li put that D6 did not supply cannabis on 11 September 2016, D1 explained that after he asked D6 if he had any cannabis D6 made a phone call.  D1 said he did not know whether in that phone call D6 was asking someone for the cannabis.  D1 agreed he made no mention of this phone call in his non-prejudicial statement. 

84.I have carefully considered the submissions of Mr Li.  I have no hesitation in rejecting the submission that D1’s evidence that he arranged the supply of cannabis for PC 18104 was unreasonable, strange, dodgy and shifty.      

85.I find inherently improbable that D1 would not only plead guilty to an offence he did not commit but also give evidence about an offence he did not commit in an attempt to obtain a reduction in sentence for an offence he did not commit. 

86.I accept the evidence of D1 that he arranged the supply of cannabis for PC 18104 and the evidence of PC 18104 that D1 introduced him a bartender of the Moses Bar called Ah Ming who sold him a bag of cannabis. 

Date

87.Mr Li submits that D1 could not give an accurate account of what happened on 11 September 2016.  This submission is based on D1’s answers in cross-examination that after charges were laid and his lawyers had explained the particulars of the charges to him he came to the conclusion the date cannabis was supplied was 11 September 2016 and that prior to that he only knew the supply of cannabis was on a day in September 2016.  

88.The fact that D1 did not remember the date cannabis was supplied was 11 September 2016 does not cause me to doubt his evidence that he arranged the supply of cannabis for PC 18104. 

89.I accept the evidence of PC 18104 that on 11 September 2016 D1 introduced him to a bartender of the Moses Bar who sold him a bag of cannabis in the back alley of the bar.    

90.I now turn to consider whether PC 18104 and D1 have correctly identified the bartender as D6 or whether they are mistaken.    

Identification

91.The prosecution case depending on the correctness of the identification of the defendant by PC 18104 and D1, which identifications the defence allege are mistaken, I direct myself in accordance with the principles established in R v Turnbull[29]. I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

92.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness; that a number of witnesses can all be mistaken and that mistakes in recognition of close relatives and friends are sometimes made[30]. 

93.When the quality of the identifying evidence is poor unless there is evidence which goes to support the correctness of the identification the accused shall be acquitted.  Odd coincidences can, if unexplained, be supporting evidence[31].

94.The defendant having elected to remain silent there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution.  As was said by the Court of Appeal in Turnbull[32]:

“An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.”

PC 18104

95.The guidelines as to identification established in the case of Turnbull apply equally to police officers.  A police officer is no more creditworthy than any other witness simply by virtue of his position.  Police identification can be just as unreliable as that of an ordinary member of the public[33].  A court is however entitled to take into account that a police officer is a professional and trained witness who is involved in the criminal justice system and likely to have a greater appreciation of the importance of identification[34].

96.PC 18104 was acting as an undercover police officer in an operation to specifically combat drug trafficking in Yuen Long and would no doubt pay attention to the persons directly involved in trafficking dangerous drugs. 

Lighting

97.PC 18104 said that when D1 first pointed out Ah Ming the lighting in the bar was on, which lighting he described as good.  In cross-examination PC 18104 agreed that the lighting in the bar was a little bit dim.    

98.In answer to the court PC 18104 explained that when saying the lighting was good he meant he could clearly see the faces of people in the bar but could not recall the type of lighting in the bar[35].

99.D1 was not asked any questions about the lighting in the bar by Mr Raffell.  In cross-examination D1 agreed the lighting in the bar was dim.    

100.When asked to describe the lighting in the alley PC 18104 said, “It is  clear, it is bright”[36]. As far as he knew the lighting was from the main road and the back entrance of the bar but he did not know the exact source of the lighting.  PC 18104 said he had no difficulty in seeing the face of Ah Ming in the alley.  In cross-examination PC 18104 disagreed it was very dark in the alley. 

101.In re-examination PC 18104 said that he identified D6 on the identification parade because he had a deep impression of his face when doing the drug transaction with him.

102.In answer to the courtPC 18104 explained that in describing the lighting in the alley as clear and bright he meant the lighting was sufficient and that bright means sufficient lighting[37]. PC 18104 went on to say that the lighting in the alley did not influence how he looked at Ah Ming’s face. 

103.D1 described the lighting in the alley at the time as rather dim.  Asked if he could see the faces of Ah Jeet and Ah Ming, D1 replied “Yes”.  D1 remembered that lights were on but could not recall any particular light.  D1 said there seemed to be a light above the back door of the Moses bar but could not recall if the light was on. 

104.In cross-examination D1 said he could not recall if there were any lamps installed on the walls of the alley.     

Site visit

105.After the court asked PC 18104 questions about the lighting in the alley Mr Li, before asking any questions arising, applied for the court to go on a site visit to see the alley at about the time the transaction was said to have occurred, namely after 8 p.m.  The prosecution did not object to the application.

106.Initially I ruled that before determining whether a site visit was necessary the parties should consider whether to place before the court photographs of the alley.  Earlier in the proceedings Mr Raffell had informed the court when submitting the photograph of the drugs and packaging (exhibit P3) there were other photographs which would not be produced. 

107.The case was stood down to the afternoon for the parties to consider my initial ruling.  In the afternoon Mr Raffell informed the court the prosecution was prepared to produce the photographs of the alley, however the photographs were taken in daylight and that without specialist equipment night photographs could not be taken. 

108.Mr Li renewed his application for the court to go on a site visit.  I refused the application with the proviso that after hearing all the evidence I would reconsider the application if renewed.  I was satisfied that I could determine the issues on the evidence without a site visit. 

109.Mr Li then asked for further time to discuss the matter with the defendant.  When the hearing resumed Mr Raffell informed the court that agreement had been reached whereby his pupil and the pupil of Mr Li would visit the alley that night and take photographs.  In the circumstances Mr Raffell asked that the evidence of PC18104 be resumed after any photographs had been taken. 

110.I made clear that when asking the parties to consider whether to place photographs before the court I was not directing that photographs must be produced.   I also made clear that it was a matter for the parties to consider and decide whether or not to place photographs before the court or adduce any further evidence. 

111.The next morning, I was told photographs had been taken but no agreement could be reached between the parties.  PC 18104 was recalled later that morning. Neither Mr Li or Mr Raffell showed PC18104 any photographs or asked him any further questions about the lighting[38]. The defence application for a site visit was not renewed.

Observation

112.PC 18104 said that before going out to the alley he saw Ah Ming in the bar for approximately 1-2 minutes but was not sure of the exact time.  PC 18104 was not aware of having seen Ah Ming before that night but did see him again in the Moses Bar on 18 September.  PC 18104 recognised Ah Ming but could not remember for how long he saw Ah Ming on that occasion. 

113.In cross-examination PC 18104 disagreed that he observed the bartender for less than 30 seconds before going out to the alley.  PC 18104 agreed that the bartenderwas not the one who took his order for the set of beer; that during the time he was in the bar he played games with D1 and Fei Kei Chai and did not observe the bartender all the time; and that he went out to the alley about seven minutes after D1 asked him if he smoked ‘weed’.   

114.In cross-examination D1 disagreed that from the table where he was sitting with PC18104 and Fei Kei Chai he could not directly see the face of D6.  D1 described that D6 was working/standing about 8.2 feet away from where they were sitting[39]. 

Is PC 18104 right or is he mistaken in the identification of D6 as the person who sold him the bag of cannabis

115.In deciding whether PC 18104 has correctly identified D6, I have not relied on PC 18104’s initial description of the lighting in the alley as bright.  I accept the evidence of D1 that the lighting was dim, which would be what one might expect of a back alley at night.

116.Although the lighting was dim, both in the bar and in the alley, this was not a fleeting glance or a longer observation made in difficult conditions. PC 18104 was able to observe D6 both in the bar and in the alley when he handed over money and received the bag of cannabis. 

117.I accept the evidence of both PC 18104 and D1 that they could see the faces of D6 in the alley.  I also accept the evidence of PC 18104 that he could clearly see the faces of people in the bar and that he saw D6 again in the bar one week later on 18 September 2016.   I also accept the evidence of D1 given in cross-examination that D6 was working/standing about 8.2 feet away from the table where they were sitting.

118.Notwithstanding that PC 18104’s identification of D6 at the identification parade held on 18 October 2017 was over one year after the cannabis was supplied to him, I am nevertheless satisfied that the quality of the identification is good without the need for supporting evidence.  Having carefully considered all the circumstances of the identification and warned myself of the dangers of mistaken identification, I find I am satisfied so I am sure that PC 18104 has correctly identified D6. 

Alcohol

119.In reaching this finding I have carefully considered the evidence that PC 18104 had been drinking beer in the bar. 

120.In examination-in-chief PC 18104 testified that D1 invited him into the bar for a drink. 

121.In cross-examination PC 18104 said he drank beer but not much beer.  Apart from the operation PC 18104 said he did drink beer but very rarely would he drink a large amount of beer.  PC 18104 ordered one set of beer, which comprised of six bottles of beer.  D1 and Fei Kei Chai also ordered another set of beer. 

122.By the time D1 asked PC 18104 if he smoked ‘weed’ PC 18104 reckoned he had drunk less than a quarter of a bottle.  Prior to going out to the alley PC 18104 said he had not drunk that much but was not very sure how much he had drunk.  In answer to the court PC 18104 said that by the time he left the bar he had drunk less than one bottle. 

123.PC 18104 said he did not feel dizzy after drinking the beer.  In re-examination PC 18104 said he was not drunk or affected by alcohol that night.

124.D1 gave evidence he drank alcohol together with Ah Jeet and Fei Kei Chai.  In cross-examination D1 could not recall how much beer was ordered.  D1 agreed that something like 2-3 sets were ordered, each set comprising of six bottles. D1 could not remember who ordered the beer or how much beer he drank.  D1 did not pay attention to how much beer Ah Jeet drank or whether Ah Jeet’s face became red and did not recall if Ah Jeet was a little bit drunk.

125.In cross-examination PC 18104 agreed that he did not mention drinking alcohol in his non-prejudicial statement or in the Occurrence Book.  PC 18104 disagreed this was because he wanted to give the impression he had not consumed alcohol and explained that this was not recorded because the set of beer did not relate to the case.  PC 18104 accepted that whether he had a sober mind that night was an important matter.

126.Mr Li submits that the failure to mention the drinking of beer in his non-prejudicial statement casts doubt on PC 18104’s evidence.  I have no hesitation in rejecting this submission.  I accept the evidence of PC 18104 that he did not feel dizzy after drinking beer and was not drunk or affected by alcohol.  The fact that PC 18104 had been drinking beer does not cause me to doubt his evidence or his identification of D6.  Nor does the fact that PC 18104 did not mention the drinking of beer in either his non-prejudicial statement or the Occurrence Book cause me to doubt his evidence or his identification of D6.   

Supporting evidence

127.Notwithstanding that I am satisfied so I am sure that PC 18104 has correctly identified the defendant as the person who sold him the bag of cannabis, I have nevertheless gone on to look to see whether there is any evidence supporting the correctness of the identification. 

128.The identification is supported by the identification of D6 by D1.  D6 was someone who D1 knew, albeit not for long, and with whom he had conversations with prior to 11 September 2016.

129.Having carefully considered all the circumstances of the identification; warned myself of the dangers of mistaken identification and reminded myself that D1 is a person with previous drug convictions and who gave evidence hoping for a reduction in sentence, I find I am satisfied so I am sure that D1 has correctly identified D6.

Video recorded interview

130.I am satisfied further supporting evidence is found in the admissions made by D6 in the record of interview[40]. I am satisfied full weight is to be attached to the admissions that his friends usually call him Ah Ming[41]; and that between 7 p.m. and 9 p.m. on 11 September he was working as a bartender in the Moses Bar[42]. I am satisfied no weight is to be attached to D1’s denials that he did not know a person called Ah Jeet and did not receive any money from Ah Jeet[43]. 

131.It is an odd coincidence that PC 18104 identified D6, who was working in the Moses Bar on the night of 11 September 2016 and is called Ah Ming.

Verdict

132.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Li both individually and collectively.  Nothing said by Mr Li causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  

133.I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D6 is convicted of charge 6, trafficking in a dangerous drug.