HKSAR v. Ali Haider

HCMA 246/2020

[2021] HKCFI 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 246 OF 2020

(ON APPEAL FROM WKCC 4156 OF 2019)

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Before: The Honourable Madam Justice Toh in Court

Date of Hearing: 30 December 2020

Date of Judgment: 30 December 2020

Date of Reasons for Judgment: 10 March 2021

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REASONS  FOR  JUDGMENT

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1.The Appellant was jointly charged with another person, with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was convicted after trial.

2.The Appellant appeals against his conviction. He was unrepresented at the hearing and I had dismissed the appeal, and here below are the reasons for the dismissal. 

PROSECUTION CASE 

3.The evidence mainly came from an undercover officer (“PW3”), who was on duty collecting information relating to gambling and dangerous drugs activities in the Sham Shui Po and Prince Edward region. At about 20:55 hours on 28 December 2018, PW3 was playing a “fish hitting game” in Kam Ho TV Games Centre (“Kam Ho”) when the Appellant told him that he could sell him game points, so on that day, the Appellant managed to sell game points to PW3 for 3 times.    

4.At about 22:55 hours outside Kam Ho, the Appellant again approached PW3 to see if he wanted more game points and the offer was rejected by PW3.  Whereupon the Appellant then asked if he wanted to buy “coke”.  PW3 enquired how much it was and the Appellant then asked PW3 to wait.  Shortly thereafter, the Appellant came back with the 3^rd Defendant and another person.  Then PW3 was offered cocaine for $2,000. When PW3 said it was too expensive, the Appellant, after consultation with the other two, then told PW3 that it would be $1,600.  PW3 then went to the ATM to withdraw money. Then PW3 was subsequently given the 2 resealable packets which contained the cocaine after handing over $1,600 to the 3^rd Defendant. 

5.Subsequently after the arrest of the Appellant, PW3 identified the Appellant in an identification parade on 30 April 2019. PW3 also positively identified the 3^rd Defendant in an identification parade on 24 April 2019. 

6.At the trial before the learned Magistrate, the Appellant and the 3^rd Defendant challenged the fairness of the identification parades but the learned Magistrate subsequently admitted the identification parade into evidence. 

CASE FOR THE DEFENCE

7.The Appellant elected to give evidence on the general issue and admitted that he did sell game points to PW3, but denied any involvement in relation to the dangerous drugs.  The Appellant was a torture claimant who came to Hong Kong from Pakistan in 2014.

MAGISTRATE’S REASONS FOR FINDING

8.The learned Magistrate had properly directed himself as to the law in relation to the special need for caution when considering the evidence of identification and the Turnbull guidelines. The learned Magistrate also very carefully assessed the evidence of the identification by PW3 of the Appellant.  He did note that it was noisy inside Kam Ho and that the price negotiation was outside Kam Ho, and there was nothing to obstruct PW3’s view of the Appellant’s face, that the lighting was good, and it was definitely not a “fleeting glance” situation as maybe seen from the review of the facts about the opportunity that PW3 had observing the Appellant, not only inside Kam Ho but also outside, when they were haggling over the price, and also of the 3 times when the Appellant sold the game points to him. Having analysed the evidence, the learned Magistrate accepted the evidence of the prosecution witnesses as credible and reliable witnesses.   After assessing the evidence of the Appellant and found that his evidence was not credible and therefore rejected his evidence.  Therefore, after carefully reviewing the prosecution evidence, convicted the Appellant of the charge.     

DISCUSSION  

9.At the hearing of the appeal, the Appellant was unrepresented and he put forward again in his argument that the conviction was wrong in that the evidence against him were false and he was framed.  As Mr Chan, Counsel for the Respondent, has set out most clearly and concisely in his submission, that the learned Magistrate had very properly and most carefully analysed the disputed identification evidence of PW3.  As the learned Magistrate noted there were many opportunities for PW3 to observe the facial appearance of the Appellant, as he had met the Appellant for about 11 times, whereas it was the Appellant’s claim that they had only met 7 to 8 times.  However, as I had read from the papers, each time was not a fleeting glance situation.  They spoke with each other, the lighting was good and there were nothing obstructing PW3’s view of the Appellant.     

10.As far as the complaint about the identification parade was concerned, the learned Magistrate also very carefully analysed the complaint and noted that from the video of the identification parade[1] that most of the actors were of similar built to the Appellant.  The Appellant complained that he was in a yellow shirt, however, the evidence of PW3 was that at the material time of the offence, the Appellant was wearing black. So really whether the Appellant was wearing yellow or other colours did not form any part of PW3’s description of his appearance.  The learned Magistrate was satisfied that the officers conducting the parade had taken every reasonable steps to ensure that the appearance of the Appellant and the actors were broadly similar.  It was pointed out in the Respondent’s submission, this was a joint enterprise case and the learned Magistrate was entitled on the evidence to find that the only irresistible influence to draw was that the Appellant was acting in a joint criminal enterprise with the other Defendants to sell drugs to PW3. 

11.I cannot see that the learned Magistrate had made any error either in law or in his analysis of the facts to render the conviction of the Appellant unsafe or unsatisfactory.  As there are no justifiable grounds to interfere with the conviction, therefore the appeal against conviction is dismissed.

Mr Jeff Chan,  PP of the Department of Justice, for the Respondent

The Appellant acting in person