The Queen v. Ng Yuk Chiu

CACC000202/1989

------------------------

Coram: Hon. Cons, V.-P., Clough & Power, JJ.A.

Date of Hearing: 28 December 1989

Date of Judgment: 28 December 1989

----------------------

J U D G M E N T

----------------------

Power, J.A.:

1. The applicant was charged that on 25th November 1988 at the middle staircase on the 1st floor of Block 22, Sau Mau Ping Estate, Kowloon, had in his possession a dangerous drug, namely 459.4 grammes of a mixture containing 31.34 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge and was, after trial before Judge Roy in the District Court, found guilty and sentenced to imprisonment for six years. He now seeks leave to appeal against that conviction.

2. The evidence upon which the Crown relied came from three police officers. It was the evidence of theist and 2nd prosecution witnesses that they saw the applicant walking up the staircase from the ground floor in Block 23 of Sau Mau Ping Estate and that on seeing them he fled. They then pursued him and he was caught at Block 22 by PW1 who was then helped by PW2, the second prosecution witness, and by PW3, a third policeman who had joined them, to subdue him. The evidence was that upon search the dangerous drugs were found inside the applicant's denim jacket.

3. It was the evidence of the applicant, which the court did not accept, that he was stopped in Block 22 and that the policemen had apprehended the wrong man. He said that the man had run past him shortly before he was stopped and that the drugs were found not on his person but nearby. The suggestion in this defence was that they had been thrown away by the real culprit who had made good his escape.

4. The trial judge accepted the evidence of the police officers saying:

"Even allowing that there were something in the alleged inconsistencies, they were not of sufficient consequence to affect nay overall judgment nor in my view to raise ring reasonable doubt that what the officers said was true. I rejected the defendant's story about the man who allegedly passed him on the stairs sand the officers coming up with the bag of drugs, as totally untrue."

5. The Grounds of the Appeal which we have to consider allege firstly that the trial judge was biased and secondly that the evidence given by the three prosecution witnesses was totally inconsistent and self-contradictory. There is nothing in the record which we have to suggest any bias on the part of the judge. The only ground that calls for consideration is the second ground which is a suggestion of inconsistent and self-contradictory evidence from the three prosecution witnesses. When properly put, the suggestion arising from this ground is that the evidence was so contradictory and inconsistent that it should have been rejected or at least should have raised some doubt in the mind of the trial judge.

6. It appears from the Reasons for Verdict that the matters which were relied on at the trial and which, we take it, the applicant relies on today when raising this ground were firstly the discrepancy that existed between the witness statement of one of the police officers which he made on the 25th of November 1988 and his evidence which he gave on the 19th of April 1989. In the former he had said that he had first grabbed the applicant by the jacket and in the latter he said that he first grabbed him by the hair. The trial judge dealt with this matter at page 3 of his Reasons when he said:

"As to the alleged inconsistencies I accepted that PW1 had used both hands to grab the defendant by the hair and jacket simultaneously, or almost so."

He clearly had this in mind. It was a matter of fact which was for him to decide and he resolved it in the words which I have just read out.

7. The second matter relied upon was the evidence from PW2 and PW3 as to the apprehension of the applicant by PW1. It was suggested that their evidence was confused and to an extent inconsistent. The trial judge dealt with this when he said:

"It seemed clear from the evidence that PW2 and PW3 did not actually see PW1 reach the defendant although they arrived within moments and saw him grain defendant and the 3 officers joined forces to subdue him."

8. Again this was a matter of fact for him to resolve when assessing the evidence and he resolved it in the words which I have just read out. There is nothing in these first two matters.

9. The final suggested unsatisfactory feature is the submission that the applicant could not have been concealing drugs in his jacket because it was, according to the evidence of the applicant, not of a type in which he would have been able to conceal such a packet of drug. The trial judge in this regard said:

"As to the alleged inconsistency concerning, the jacket I was not prepared to accept the defendant's evidence on this question since: (a) he admitted he had more than one denim jacket; (b) during his 5 months in custody his clothing could easily have been changed; and (c) I believed the dangerous drugs had been found from his denim jacket as the three officers said."

10. The applicant before us today takes particular issue with the finding of the learned trial judge that during his five months in custody his clothing could easily have been changed. He submits that if the prison records were examined they will show that no such exchange took place. He suggests that evidence could be called in this regard.

11. When dealing with this submission, one must look at what occurred at the trial. The Crown sought to call further evidence in this regard and the application was opposed by defence counsel. Far from seeking to support the application and further investigate the matter by hearing from Crown witnesses and, if, necessary, from Defence witnesses, defence counsel objected to the application. In the event the Court held that no further evidence should be called in this regard.

12. The matter having bean canvassed and the Defence having rejected the opportunity that arose to place further evidence before the court the applicant cannot now be heard to suggest that such evidence should be called.

13. Furthermore it must be noted that the trial judge went on to says:

"Even allowing that there was something in the allege inconsistencies, they were not of sufficient consequence to affect my overall judgment nor in my view to raise any reasonable doubt that what the officers said was true.''

14. It is quite clear that he had no doubt that the two police officers were telling the truth in their evidence which was amply sufficient to warrant a conviction.

15. We are satisfied that the application for leave to appeal against conviction must be refused.

Representation:

Mr. I.G. Cross & Mr. Patrick H.L. Li (Crown Prosecution) for the Respondent.

Applicant in person.