HKSAR v. Poon Chun Tung

HCMA 226/2018

[2018] HKCFI 2407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 226 OF 2018

(ON APPEAL FROM WKCC 4947 OF 2017)

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J U D G M E N T

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1.The appellant was found guilty of an offence of “Possession ofa dangerous drug” after trial by Magistrate Edward Wong (“the magistrate”). He was sentenced to 8 months’ imprisonment.

2.The appellant now appeals against his conviction.

3.The appellant is represented by the same counsel, Mr Boyton, both at trial and in this appeal.

The prosecution case

4.Mr Kuan for the respondent has in his written submissions succinctly summarized the prosecution case as follows:

“ 2. In a nutshell, CIB officers followed the appellant as he was walking towards an MTR station in Tsuen Wan. They intercepted the appellant and after a search, dangerous drugs were found in the right trouser pocket of the appellant wrapped in a piece of tissue. CCTV installed in the vicinity captured the course of the arrest.”

5.The prosecution called three witnesses.  They were all police officers attached to the Criminal Intelligence Bureau (“CIB”). SIP Ho (PW2) gave evidence that he found in the appellant’s trouser pocket a resealable transparent plastic bag wrapped by a piece of tissue (collectivelyExhibit A) which contained 1.58 grammes of a solid containing 0.38 gramme of ketamine[1] (Exhibit B).

The defence case

6.The appellant elected to give evidence, but did not call any defence witness.  The appellant was then a serving detective constable, buthis duties did not include proactive intelligence gathering.  He said he was supposed to meet with an unregistered informer named TSUI that evening. TSUI showed up but was in a hurry to leave.  The appellant agreed to meet next time. 

7.The appellant alleged being framed up by the CIB officers, particularly PWs 1 to 3.  He adopted the contents of his video recorded interview as part of his evidence.  He claimed in the witness box that it wasSgt 34397 (PW3) who waved his hand to the other officers, squatted down, picked up the piece of tissue from the ground (with the plastic bag containingdrug wrapped inside) and opened it.  The appellant further alleged that PW3 asked him whether he would admit it. The appellant asked PW3 what to admit.  PW3 said “Possession of dangerous drug, the dangerous drug inside the tissue.”  The appellant replied “You just picked it up from the ground.”  PW3 then said “I said it’s the trouser pocket, then it’s the trouser pocket.”

The magistrate’s findings

8.The magistrate analyzed the evidence and gave reasons for his findings[2] as follows:

“ 25. The Defence argued that there was doubt as to whether Exh A and B were found from D because (a) the CCTV footages(showing from 22:12:41 to 22:12:44 that PW3 squat down, stood up, and opened something) support the Defence case that the dangerous drug was picked up from the pavement; and (b) D already denied possession of it in VRI.

26. I disagreed. I carefully watched the footages and observed that they do not show clearly PW3 did any act of opening thing.Besides, PW3 testified that what he picked up was D’s mobile phone and not Exh A or B. I considered his evidence credible because it was agreed that D dropped his white phone onto the ground.

27. Having meticulously considered all PWs’ testimonies, I found them giving evidence directly and sincerely, their evidence were reasonable, consistent and supporting each other. I held them to be honest and reliable, and accepted their evidence.

28. Conversely I did not accept D’s versions in oral cautioned statement, VRI and testimony insofar as they are inconsistent with the Prosecution’s evidence for the following reasons.

29. First, D said the only reason why he was at the scene was the fact that he had met Tsui for drug-related information. I found his explanation unreasonable and inherently improbable for reasons as follows:

(a) D’s duties in the District Investigation Team did not include proactive intelligence gathering.

(b) Tsui was not registered as an informer.

(c) According to standard Police procedure, an officer should inform his supervisor before meeting an informer, or as soon as possible afterwards. But D never did any of thesefor meeting Tsui, despite the fact that he had been a policeofficer for 20 years and had submitted investigation report on information provided before.

(d) D said Tsui did not provide him with any intelligence on the Charge date because Tsui was not free. I found it unreasonable and inherently improbable that, when they could have contacted each other by phone, Tsui had to actually see D just to say that he was not free; and that despite having already met up, he still did not give any intelligence whatsoever as allegedly agreed.

30. Second, D said that Exh A and B were not found from his trousers pocket but the ground where he was intercepted. I found his version incredible:

(a) Nothing suggested that any of the police officers had known where D was going. Thus they could not have planted the dangerous drug at where D was stopped.

(b) The spot of interception was just outside the gate of the carpark of Luk Yeung Sun Chuen, a residential estate. It was inherently improbable that the dangerous drug in question just happened to be there.

(c) Although D’s trousers have a hole in the right front pocket,they were never seized by the police and were tendered asexhibit by the Defence only at trial, which was about one and a half years after the arrest. Thus the fact that there is a hole now does not mean that there was also a hole or a hole of the present size at the material times.

31. Third, D testified in court that, when he and PW3 were attached to Tin Sum Police Station, he had been mildly scolded by the latter for being impolite, cheeky, tricky and cocky in not greeting him (PW3). But D said in VRI that they were in different teams and had nothing to argue about. So his versions in this respect were inconsistent.

32. Although I did not accept the aforesaid parts of D’s evidence, this did not mean that he was guilty because the burden of proof was on the Prosecution.

33. Based on the Prosecution’s evidence, I was sure that on the date and at the location of the Charge, Exh A containing Exh B (the subject dangerous drug) were in the right front pocketof D’s trousers.  As such, I was also sure that he must have knownabout this.  Hence the Prosecution proved the Charge and D was convicted accordingly.”

Grounds of appeal

9.Mr Boyton advanced the following grounds of appeal:

Ground 1:   The learned trial magistrate erred on the facts and/or on the law by rejecting that the defence case put, that is, the dangerous drugs were found on the ground by PW3, because the prosecution evidence was not contradicted by the video footage.  This was an erroneous application of the burden and standard of proof.

Ground 2:   The learned trial magistrate convicted against the weight of the evidence.

10.In the appeal hearing, Mr Boyton invited me to view the CCTVfootage (Exhibit P4) in court.  Mr Boyton submitted that PW3 said in his evidence that he had picked up the white bag (which contained a cream puff) and a cell phone from the ground.  However, as revealed in the footage,whatever PW3 picked up could not have been the white bag.

11.On the other hand, the appellant, even before he was served the CCTV footage, has claimed in his video recorded interview that the drug was picked up from the ground.  It shows that the appellant’s allegation is not a recent fabrication at trial.

12.Furthermore, Mr Boyton submitted that the pursuit and arrest of the appellant was a team effort; the court should not just focus on the evidence of an individual officer.  If the credibility of one officer is tainted, the credibility of the whole team is invariably tainted.

My considerations

13.I have viewed the CCTV footage a number of times in court and in chambers. For the crucial moments, I watched the footage almost frame by frame by manually stopping the clip at each second.

14.What I saw in the footage are these (in chronological order): 

(i)   When the appellant was intercepted by 2 males, he first dropped his cell phone, which landed on ground by the metal railings at theedge of the pavement.  The white bag containing a cream puff was still held by the appellant when he was being subdued. 

(ii)   After 2 cars went past the camera, the appellant was still at the metal railings in a squatting posture and being controlled by several males.  CIP Lai (PW1), who was also in a squattingposture, placed the white bag on the pavement (near where the cell phone landed).

(iii)   The appellant was taken away from the metal railings to the fence outside a building (just a few steps away from the edge of the pavement).

(iv)   As the 3^rd car (KB 906) approached the camera, the male with a shoulder bag bent down, picked up something and placed it in his shoulder bag[3].  Almost at the same time, PW1 moved from the fence to the metal railings and bent down.  He got upas KB 906 was blocking the camera.  When KB 906 drove past, PW1 was already standing by the fence and the white bag was on the ground by the appellant’s feet.

(v)   PW3 moved from the fence to the metal railings, bent down,waved his right hand to his colleagues, picked up the cell phone dropped by the appellant and walked to the fence.

(vi)   Something light (and looked transparent) fell down from PW3 and he bent down to pick it up.

(vii)   As the team of officers were about the escort the appellant away, a male in blue/grey shirt bent down and picked up the white bag by the appellant’s feet.

(viii)   As the group was leaving, PW3 was holding a transparent plastic bag with something white inside (the contents of the transparent plastic bag appeared to be lightweight).

15.I am certain that what PW3 picked up at the metal railings was the white cell phone dropped by the appellant and not a bag of ketamine wrapped in a piece of tissue.  PW2’s evidence[4] supports my conclusion:

“ A: So after having searched all of defendant’s pockets, I looked around and noticed that where we intercepted the defendant there was a white colour Smartphone left on the floor. I asked my colleagues at the scene whether if anyone of them had dropped their phones.

…

A: So nobody answered me so I suspected that the phone belonged to the defendant and was accidentally dropped on the ground during the struggle.

Court: Yes?

A:  So I ordered my sergeant 34397 to pick up the phone and after he had done that in the presence of defendant I ordered my sergeant 34397 to declare arrest on the defendant for possession of dangerous drugs.”

16.I disagree with Mr Boyton that the magistrate has erroneouslyapplied the burden and standard of proof by placing a burden on the defenceto establish evidence of contradiction and/or doubt on the prosecution case.  The proposition of PW3 picking up Exhibits A and B from the ground at the metal railings was made by defence at trial.  Having viewed the CCTV footage and heard the evidence of PWs 1 to 3, the magistrate came to a conclusion that the CCTV footage does not support such an allegation.  This was as simple as that.  The magistrate did not reject the defence case simply because the CCTV footage did not contradict the evidence of PWs 1 to 3.  The magistrate has thoroughly analysed the appellant’s evidence and gave it his due consideration.

17.I am aware that PW3 has stated in his evidence that he had picked up the white bag and the white cell phone[5].  It is now clear to me that the white bag was picked up PW1 and placed on the ground at the fence by the appellant’s feet.  PW3 might not have picked up the white bag at the metal railings but has certainly picked up a white cell phone there. In any event, he certainly did not pick up Exhibits A and B there.  In my view, I agree with the magistrate that the CCTV footage did not contradict the evidence of PWs 1 to 3.  On the other hand, it clearly negated the appellant’s allegation of “planting” because whatever PW3 had picked up from the ground at that particular moment, it was not Exhibits A and B.

18.I have reminded myself of the principles on “re-hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in the magistrate’s reasoning or findings.  In relation to PW3’s evidence,I do not find any of his behaviour as shown in the CCTV footage remotely indicative of the “planting” allegation made by the appellant.  It is my finding that PW3 did not unwrap anything when he bent down at the metalrailings and that his waving gesture had no significance.  Most importantly, what he picked up at the metal railing was the cell phone dropped by the appellant and nothing else.  As a juror, the magistrate is entitled to accept PW2’s evidence that he found Exhibits A and B in the appellant’s right trouser pocket.

19.Based on the reasons stated above, I see no reason to interferewith the magistrate’s decision.  The appellant’s conviction is neither unsafe nor unsatisfactory.

20.The appeal is dismissed.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr David Boyton, instructed by T K Tsui & Co, for the appellant