HKSAR v. Jallow Pateh

FAMC No. 48 of 2018

[2018] HKCFA 57

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 48 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 81 OF 2017)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.We dismissed this leave application at the hearing for reasons which we now provide.

2.This case arises out of a police undercover operation against pushers of cocaine in Lan Kwai Fong and Soho.  It was conducted over some five months and initially launched as an intelligence gathering exercise.  It was later evidently decided that the materials generated by that operation were sufficient to bring prosecutions against the targets of their surveillance.  Those targets were largely African asylum seekers or torture claimants.  The applicant was from Gambia and he was tried and convicted with two co-defendants who came from Gambia and Guinea respectively. 

3.The police modus operandi was for one undercover officer to act as the purchaser when approached by pushers (usually two pushers acting together) while the transaction was observed by a second officer.  A little while after completion of the purchase the second officer would intercept the targets and ascertain their identities.  The details of each purchase and the identities of the targets concerned were recorded but they were not immediately arrested.  It was only a few months later that they were arrested and charged with trafficking in small quantities[1] of cocaine, relying on the combined evidence of the two-man teams of officers.

4.These unusual features led defence counsel[2] to argue that there were serious weaknesses in the prosecution case which he highlighted (along with allegations of unfairness to the applicant) at the trial before the magistrate,[3]  submitting that:

(a)   The long gap between the alleged offence and the arrest made it very difficult for the defendants to mount a positive defence, eg, of alibi, since they did not have records of their whereabouts on any given night.[4]

(b)   The evidence relied did not include many types of evidence one would have expected, eg, evidence of fingerprints; phone contacts between the defendants alleged to have worked together as pushers;  photos or videos or CCTV recordings of the transaction; and DNA material.[5]

(c)   The evidence of police officers as to the words and approach they used was inherently implausible: No one would go up to a complete stranger and openly offer cocaine.[6]

(d)   Inconsistencies in the testimony of officers cast doubt on its truthfulness or reliability, eg, as to what the team member in fact observed.[7]

(e)   Moreover, the evidence of the officers looked suspiciously as if it had been rehearsed and standardised, casting doubt on its truthfulness and reliability.[8]

(f)   There was a strong suspicion that black African asylum seekers had been racially profiled, there having been 29 arrests, all involving such persons.[9]

5.It was contended that the arrests were a response to public disquiet about press reports of drug pushing in Lan Kwai Fong and Soho, leading the police to set up or frame the persons arrested, including the applicant.  An application for the prosecution to be permanently stayed was refused.

6.The magistrate described the police modus operandi[10] and noted that “only ... identification [was] in issue”.[11]  He observed that the undercover “purchaser” had come to know the applicant, having met him nine times between April and July 2016[12] and permitted a dock identification, treated as supplementary evidence.[13]  He concluded that the applicant and his co-defendants had correctly been identified with the assistance of reliably kept records of the operation. 

7.In other words, notwithstanding the absence of other evidence that one might have expected to find in a case against a drug pusher, he found the evidence sufficient proof beyond reasonable doubt of the applicant’s identification and guilt:

“I fully accept that the design of the operation of checking the identity of suspect by their Form 8s was effective identification and reliable evidence.”[14]

8.The applicant’s appeal to Deputy High Court Judge Anthony Kwok,[15] was dismissed.  The Judge[16] pointed to the frequent contacts between the undercover officer and the applicant so that there was no doubt as to the reliability of his identification as the pusher.  Given the strength of that evidence, he considered the absence of other types of evidence to be “neither here nor there”.[17] He concluded that there was no basis for questioning the magistrate’s findings.[18]

9.Leave is now sought on the substantial and grave injustice basis on the grounds that:

(a)   The Prosecution failed in their Disclosure obligation by failing to provide the Applicant’s Defence with material relating to all other arrests/Prosecutions in Operation Jade Goblet, including but not limited to, those in which the 3 Prosecution Witnesses had participated.

(b)   The Learned Duty Magistrate demonstrate “Inherent Bias” against the Defendant.

(c)   The Learned Deputy Magistrate failed to make any or due allowance for the difficulties created for the Defence by the Applicant’s delayed arrest.

(d)   The Learned Deputy Magistrate unquestionably accepted Prosecution evidence on how and where the “deals” were conducted apparently without consideration of how inherently unlike these would have been.

(e)   The Learned Deputy Magistrate failed to consider the effect on PW1’s credibility that in no less than 7 subsequent meeting the Applicant made no further attempt to offer, let alone sell, him Dangerous Drugs.

10.These complaints do not provide any basis for an appeal.  As the Courts below held, the issue was one of identification which, on the evidence, was properly established beyond reasonable doubt.  It is not reasonably arguable that there was a duty to disclose to the defence “all other arrests/Prosecutions in Operation Jade Goblet [the intelligence gathering exercise]”.  The suggestion that such material might be relevant to the central issue in the case is purely speculative.  The allegation of inherent bias is without substance.  The language complained of as indicating such bias consisted of the Magistrate’s recital of or reference to language used by the defendants themselves.  The suggestion that the prosecution witnesses’ credibility should have been doubted involves assessment of the weight of their evidence properly within the province of the courts below.  It is not a matter for further review in the Court of Final Appeal.  There are therefore no reasonably arguable grounds for granting leave to appeal and the application was accordingly dismissed.

Mr James H.M. McGowan, instructed by Littlewoods, assigned by the Director of Legal Aid, for the Applicant

Ms Virginia Lau, SADPP, of the Department of Justice, for the Respondent