HKSAR v. Njie Samuel John

HCMA 241/2018

[2018] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 241 OF 2018

(ON APPEAL FROM ESCC 430 OF 2018)

____________

____________

Before: Deputy High Court Judge Gary Lam in Court

Date of Hearing: 26 October 2018

Date of Judgment: 20 November 2018

___________________

J U D G M E N T

___________________

1.The appellant was found guilty of an offence of “Trafficking ina dangerous drug” after trial by Magistrate Kathie Cheung (“the magistrate”). He was sentenced to 2 years and 2 months’ imprisonment.

2.The appellant now appeals against his conviction and sentence.

3.The appellant was represented by counsel Ms Diane Crebbin (privately briefed) in the court below.  In this appeal, the appellant acted in person.

APPEAL AGAINST CONVICTION

The prosecution case

4.This case originates from a typical “controlled buy” dangerousdrugs transaction.  The appellant sold a packet of cocaine[1] to an undercover police officer (PW1) at $1,000.  In an identification parade held 3 months after the transaction, PW1 positively identified the appellant as the person who sold him the packet of cocaine.

5.The prosecution called 3 police officers to give evidence.  In her written submissions filed back in July 2018, Ms Peggy Lo, ADPP (Ag), has helpfully summarized their evidence as follows:

(i) About 11:30 pm on 4 September 2017, PW1 walked past a bar in Wanchai.  The appellant, who was wearing a black T-shirt, a pair of dark camouflage trousers and a cap, offered to sell PW1 cocaine.  PW1 then followed the appellant to the back alley of a nearby hotel.  At that location, the appellant sold a packet of cocaine to PW1 at $1,000.

(ii) The initial conversation between the appellant and PW1 lasted about 20 to 40 seconds, during which PW1 had a clear view of the appellant and made careful observation of him.

(iii) The back alley was darker than the main street, but PW1 still had a clear view of the appellant and the transaction took about 30 seconds.

(iv) PW2 was at an observation post on the 4th Floor of a nearby building.  Without using any telescopic device, PW2 describedthe appellant as person wearing a black T-shirt, a pair of black shorts and a cap.

(v) PW2 claimed that he view was not blocked between the time when he first saw the PW1 talking to the appellant and when hesaw the appellant being intercepted by a uniformed police officer (PW3).  PW2 frankly admitted that from his observation post, he could not see the alleged drug transaction between the appellant and PW1.

(vi) PW2 stated that he saw PW1 walking by the appellant and talking to him.  PW1 and the appellant then walked towards anearby hotel and turned into a parking area.  He later saw PW1 and the appellant walking out.  PW1 then walked away and 15 minutes later, the appellant and his friends were interceptedby a uniformed police officer.  PW2 said he did not lose sight of the appellant after PW1 had left the scene.

(vii) Shortly after the drug transaction, PW3 stopped the appellant and his friends to inspect their identity documents.  PW3 recorded down the personal particulars of the appellant.  At that time, the appellant was still wearing a cap and none of his friends was wearing one. Subsequently, the appellant admitted in his video recorded interview that the number of the recognizance paper recorded by PW3 is the same as his.

The defence case

6.The appellant elected not to give evidence or call any defence witness.  Defence counsel challenged the credibility and reliability of the identification evidence.  In his video recorded interview, the appellant claimed that he did not remember what he did and where he was at the time alleged by the prosecution.  He also denied having sold any dangerous drugs.

The magistrate’s findings

7.In her Statement of Findings, the magistrate gave her reasons[2] as follows:

“ 9. The only issue in this case is whether the male who sold a packet of cocaine to [PW1] is the defendant. In other words, this case turns on the identification evidence. In considering the verdict, I bear in mind the principles and matters set out in R v Turnbull [1977] QB 224 and that an honest witness can be mistaken.

10. Defence submitted that [PW1] only had a brief encounterwith the seller for not more than 1 minute at night time with night lighting. [PW1] was not able to point out any unique feature of the seller. As the seller was wearing a cap, it was submitted that at least part of his face was shaded. Further, the deal took place in the side alley, which was darker than the main street. It was also pointed out that the seller must have looked down for at least several seconds during the deal when he got the drug from his pocket and when he put money into his pocket. Further, if the seller was looking around, [PW1] would not be able to see the whole of his face. It was submitted that [PW1] would not be able to identify the seller 3 months after the deal from this brief encounter.

11. During the deal, what the seller needed to do is to take out the packet of cocaine from his trousers pocket. Given the simplicity of the act and that the seller was not searching for something from a big bag, it was indeed natural for him not to look down into his trousers/pocket. It was [PW1’s] evidence that the seller kept looking side by side. I would say this is the natural reaction of the seller when he was selling drug to others as he would like to make sure this was not seen by other people. Given the close distance between [PW1] and the seller, I find [PW1] was able to observe the face of the seller during the deal. He was also able to observe his face when they talked before the deal.

12. While a person may have a good observation and memory of another person’s facial feature, it is often difficult to describe the facial features in words unless that other person has a very special/unique feature on his/her face. Thus, the fact that [PW1] was not able to point out any unique feature of the seller does not necessarily mean that he had not had a good observation and memory of the face and appearance of the seller. During the incident, [PW1] observed the defendant at very close distance for1 minute. His view was unobstructed and with sufficient lighting. He further stated that when he was talking to the defendant, he wasable to observe the defendant’s facial feature, face and contour ofhis face. In an operation like this when it is not the plan to arrest the persons involved there and then, it must be one of [PW1’s] job duties to memorize the appearance of the persons involved. Therefore, I have no doubt he had made a good and detailed observation of the seller. The fact that he was able to identify the defendant from a parade with actors of African nationality and similar appearance further supports the accuracy of his observation, bearing in mind it was not disputed that the identification parade was conducted in a fair manner.

13. Defence submitted that there is discrepancy between the evidence of [PW1] and [PW2], the officer at the observation post, in relation to the clothing of the seller, i.e. the male wearing the cap. It was submitted that while it might be difficult to tell the colour or pattern at night time, trousers and shorts are clearly two different things. The crucial link in the identification is from [PW2]. However, [PW2] testified that the male with cap was wearing black shorts while [PW1] described the seller wearing dark colour camouflage trousers. Although it was submitted by the prosecution that the wearing of the cap is the distinctive feature, there was no evidence that the seller was the only person wearing cap there. Defence submitted that the discrepancy cast doubt on whether the two officers were referring to the same person.

14. [PW1], [PW2] and [PW3] all testified there were 3 African people at the material time, two males and one female. All officers testified that one of the African males was wearing a cap while the other male did not. There was no evidence that there were other African males wearing cap in the vicinity and it was never put to the witnesses in cross-examination. Therefore, there is no evidence in this case that at the material time, there were other males wearing cap in the vicinity apart from the male described by the three officers. As far as the discrepancy in clothing is concerned, given that [PW2] was observing from a distance at a level of 4^th floor, his observation on the clothing may not be as accurate and detail as [PW1] who was talking to the seller face to face. In any event, both officers described the colour to be dark or black, which is highly consistent. I thereforedo not consider this discrepancy to be so significant to cast doubt on the credibility of the two officers.

15. Defence also submitted that [PW1’s] evidence was not supported by other evidence such as fingerprint evidence, CCTV recording, retrieval of marked money etc. It is true that there is no such evidence in this case. Nevertheless, it is not a must that all these evidence have to be present before a defendant can be convicted of such charge. This case is not a normal stop and search case or a one-off control buy operation. It involved an operation lasting for 1–2 months. It is not unusual for operation like this that the seller involved is not arrested there and then immediately after the deal. It usually takes some time before the operation turns overt and the persons involved are arrested. By then, the marked money may have gone to other person’s possession. Therefore, in considering the verdict, what I need todo is to consider the evidence available and decide whether thereis sufficient evidence to prove the charge beyond reasonable doubt.

16. It was also submitted that since [PW2] had made mistakein relation to the timing when [PW1] talked with the male wearing a cap, it was possible that [PW2] was also mistaken in other aspects of his evidence. [PW2] had confirmed in his evidence in court that he did not make mistake in other aspects of his evidence and there was no evidence to point to other mistake. In the circumstances, I do not consider this to affect [PW2’s] credibility.

17. [PW1’s] act of talking to the seller and walking with theseller to a hotel nearby and returning to the location from the hotelnearby was witnessed by [PW2]. Although [PW2’s] descriptionof the defendant’s clothing is slightly different from [PW1], thereis no doubt that they are referring to the same person as they bothtestified that there were 3 Africans there at the material time, twomales and one female. For the two males, one was wearing a cap and the other not wearing any cap. Both officers testified that [PW1] talked to the male with cap. I am sure there was no mix up of the 2 African males there. While [PW2] agreed that there were temporary obstructions of his view of the male wearing a cap during his two-hour observation, he confirmed that his view was not obstructed during the period when [PW1] first talked with the male wearing a cap to the time both of them returned to the location from the hotel nearby.

18. [PW3] was the uniform officer who intercepted the defendant for ID check at the material time. He confirmed that at that time the defendant was wearing a cap. He inspected the defendant’s recognizance paper and jotted down his name and document number. He also confirmed that he checked the ID of the other dark male. That other male was not wearing a cap.

19. Given [PW2] had unobstructed view of the male with the cap when he started talking to [PW1] until the two of them parted after the deal and that he saw the same male with the cap stopped and checked by [PW3], I have no doubt that the three officers were referring to the same person, i.e. the defendant.

20. To sum up, all prosecution witnesses gave straightforwardand clear evidence. They were not evasive. They were not shaken under cross-examination. I find all of them honest and credible. I accept their evidence and attach full weight to their evidence.

21. Based on the evidence I accept, I have no doubt that it was the defendant who sold a packet of cocaine to [PW1] at the material time.  I therefore find the prosecution has proved beyond reasonable doubt that the defendant had committed the offence as charged.  I find the defendant guilty of the offence.”

Grounds of appeal

8.The appellant said the magistrate’s decision is wrong.  He repeated the discrepancy between the evidence of PW1 and PW2 regarding the lower garment worn by the alleged drug seller (dark camouflage trousers as opposed to black shorts).  He also complained that someone took a photo of him with a cell phone when he was arrested.  That photo must have been shown to PW1 for the purpose of the identification parade.  The appellant claimed to be a victim targeted by the Police.

My considerations

9.Ms Chit for the respondent submitted that the magistrate was well aware of the discrepancy between the evidence of PW1 and PW2 regarding the lower garment worn by the alleged drug seller.  But she did not consider such discrepancy material.  The explanation given by the magistrate is reasonable and convincing.

10.Regarding the taking of the appellant’s photo when he was arrested, Ms Chit pointed out that it was mentioned by defence counsel in her final submissions[3]. The allegation was put to PW1 during cross-examination, but he denied it.  Ms Chit submitted that although the magistrate did not specifically deal with this point in her Statement of Findings, the magistrate did not need to since PW1 has denied the allegation of having seen a photo of the appellant before the identification parade and it was an admitted fact that the identification parade was conducted in a fair and lawful manner[4]. Ms Chit asked rhetorically, had PW1 been shown a photo of the appellant before the identification parade, how could it have been conducted in a fair and lawful manner?

11.I completely agree with Ms Chit’s submissions.  In my view,the drug seller’s identity was basically proved at the time when PW3 demanded the appellant to produce his identification document and recorded the particulars as shown on the appellant’s recognizance paper. The hatch then became tightly sealed when the appellant confirmed the number of his recognizance paper in his video recorded interview[5] (which is the same as recorded by PW3) and that he has never lost his Form 8 or lent it to anyone[6].  It matters not whether the drug seller was wearing dark camouflage trousers or black shorts.  This so-called discrepancy is just a red herring.  According to PWs 1 and 2, the drug seller was wearing a cap.  And according PWs 2 and 3, there was only 1 African male wearing a cap at the material time.  Putting two and two together, the only conclusion must be that the African male wearing a cap was the drug seller.  Finally,the particulars on the Form 8 proved that the African male wearing a cap was the appellant.  There is no magic to it but simple logic.

12.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 themagistrate’s reasoning or findings.  The magistrate has thoroughly evaluated the prosecution’s evidence as well as the case put by defence counsel. Her analysis is sound and with proper evidential basis.  I see no reason to disturb the magistrate’s findings.

13.I dismiss the appeal against conviction.

APPEAL AGAINST SENTENCE

14.In sentencing the appellant, the magistrate gave her reasons[7] as follows:

“ 23. The defendant is convicted after trial of one count of trafficking in 0.16 gramme of cocaine. As he is convicted after trial, he is not entitled to the usual discount for guilty plea.

24. The sentencing guidelines for heroin is applicable to cocaine. For trafficking in up to 10 grammes of heroin, the sentencing band is 2 – 5 years’ imprisonment.

25. Given this case involved selling of cocaine to an undercover police officer, I consider the appropriate starting point is 2 years’ imprisonment (see AG v To Ka Yin, CAAR 3/1996).

26. There is a line of authority to the effect that if non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence.

27. For the aggravating feature that the defendant was at the time of the commission of the offence a Form 8 recognizance holder and a non-refoulement claimant, I consider the sentence should be enhanced by 2 months.  Despite the defendant has health problem and a young son, I do not consider these to be valid mitigating factor justifying reduction of the sentence.  Therefore, the defendant is sentenced to 2 years and 2 months’ imprisonment.”  

Grounds of appeal

15.The appellant claimed that there is no one to look after his 1½-year-old son in Hong Kong.  He said his girlfriend is not doing her job as a mother properly. 

My considerations

16.I have read the transcript of the mitigation made by defence counsel[8]. Ms Crebbin has said everything she could on behalf of the appellant.  Regrettably, there existed no mitigating factors weak or strong.

17.I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in a foreign territory.  Hong Kong owes those people nothing but has generously extended its hospitality to them.  The bottom line is they need to behave themselves and obey the law here.  This is certainly not one bit too much to ask for and is the least those people could do in return for the protection offered to them by Hong Kong.

18.The appellant’s sentence is correct and I see absolutely no reason to interfere with it.  The appeal against sentence is also dismissed.

Ms Noelle Chit, PP of the Department of Justice, for the respondent

The appellant appeared in person