The Queen v. Wong Man Yuen

CACC000301/1985

BETWEEN

Coram: Hone Li, V-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 21st January 1986

Date of Judgment: 21st January 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant was convicted of two charges of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to 2½ years in total.

2. The prosecution evidence was that on the 20th of January last year at about 5.30 P.m. two police constables in plain clothes were walking and patrolling the first floor in the staircase of Tak Po Building in Tak Por Square, Tsuen Wan. They observed the applicant acting in a suspicious manner at the landing between the ground floor and the first floor. They saw the applicant took out a rain coat and a helmet from a blue bucket on the landing and took out from the helmet something which he put in his right trousers pocket. He replaced everything to the blue bucket. The applicant was seen walking upstairs. He was stopped, searched and found dangerous drugs in his pocket which formed the subject matter of the first charge.

3. He was arrested, cautioned and taken back to the landing where the bucket was. The constables searched the bucket and found some 12 polythene bags of dangerous drugs which formed the subject matter of the second charge. The constable said that he asked the applicant what was in the bag. The answer was that "These things are not mine." He was then arrested and cautioned again. The applicant made no reply.

4. In the bucket were found also certain other empty bags, some torn bags with traces of dangerous drugs, and a Po Chai phial also with dangerous drugs. On his person were found $1,550 and a pager. When he was queried the answer by the applicant was: "Can I not have this money? I have no job." He was taken back to the police station. The drugs were taken to the government chemist for analysis which confirmed the presence of drugs in the two batches that were found on his person and in the blue bucket respectively.

5. The defence evidence was that the applicant was employed in an entertainment centre. On that day he went to the building in order to look for a cleaner so that he could return a loan of $100. When he got on to the staircase he encountered the police constables coming up from the stairs. When he was asked he told the constables that he was looking for a friend by the name of Ah Ping. Then one constable said "Don't say so much, search him first." All the constables found were the money and the pager. Then one constable said to the others: "Search the blue bucket beside us." The applicant could not see what was found in the blue bucket. Then one of them held a white bag in hand and some syringes and said that "You are unlucky. We come here to look for drug addicts." One of them took some syringes from the applicant's pocket and said: "Earlier on I found these things so I come here to look for drug addicts. The defendant said: "I don't know what is this." The constable said that "I take this white bag is yours." Then he was told he was arrested and that he could tell the judge his own story. The constables went downstairs and found some more drugs in the plastic bag and planted them on him. Such were the prosecution and defence evidence. It was obvious the only issue was that of a frame up as raised by the defence. The issue was whether the constables were telling the truth or the applicant was, telling the truth.

6. The judge in his Reasons for Verdict realized the presumption that was contained in the Dangerous Drugs Ordinance and realized that such presumptions were rebuttable. He went on to give his reason in the following terms :

"The defendant would like me to believe that he was going to see Ah Ping, the cleaner who works in Tak Po Building and yet he did not know what was his surname nor his place of abode although he has visited him three to four times. The defendant went out of his way from the mahjong school which is situated in the same building to go to a cinema and came back to the said building to repay $100 which he alleged to have borrowed from Ah Ping.

The defendant agreed in cross-examination that it was usual for the cleaning of building to take place in the morning of the day but at the time when he went to look for Ah Ping, it was after 5.15 p.m. I do not hold this against him as human beings being what they are sometimes do illogical things at times.

The most damaging piece of evidence against the defendant was when he was asked by the Crown in crossexamination

The judge was obviously referring to the lack of cross-examination about the syringes that was mentioned by the applicant in his evidence-in-chief.

7. Two points had been canvassed before us despite the many other grounds that the applicant advanced in his home-made grounds. The first ground was that at the conclusion of each prosecution witness the judge said that the prosecution witnesses gave excellent, impressive and truthful evidence. That showed bias. The second ground was that the judge referred to the lack of cross-examination about the syringes as damaging and therefore he failed to consider counsel's explanation why the syringes were not mentioned earlier. This again rendered the verdict unsafe and unsatisfactory.

8. We do not feel that the second point is a valid ground for complaint. It was quite obvious that the matter of syringes was an important matter when there was a conflict of evidence. Counsel for the defence should have raised it irrespective of whether the constables denied that prior to the arrest they had patrolled the building.

9. The first point canvassed deserved anxious consideration. As a result of that we adjourned the hearing the other day until we obtained affidavits from prosecuting counsel, defence counsel and comments by the trial judge. Defence counsel, in his affidavit, deposed as follows:

"I have not made detailed notes of the proceedings as I was appearing alone. But from my memory of what transpired. during the trial I recall that after my cross examination on each of the two prosecution witnesses the learned trial judge did remark that they had given excellent evidence and that their District Commander should know. Those remarks were made before the Defendant gave his evidence."

Prosecuting counsel deposed in his affidavit that:

"After the Crown had closed its case against the Defendant, I do recall that the Deputy District Judge did mention something to the effect that the two prosecution witnesses were truthful, impressive and honest. However I cannot recall the exact words used."

10. The judge commented:

"It is my practice to keep full and proper notes of all proceedings at the hearing. I have no recollection of any of these comments whatsoever.

However, I must have said something to the effect in the course of delivering my Reasons for Verdict as appearing in Page 3 'P.W.l's evidence was unshaken even after severe crossexamination by defence counsel and was corroborated by P.W.2's evidence in almost every aspect.' "

11. The issue was whether the police or the applicant was truthful. In view of the affidavit evidence, both prosecuting counsel and defence counsel said the judge did commend the constables for giving excellent evidence. Indeed prosecuting counsel went even further by saying that after the Crown closed his case against the defendant which was before the defence evidence was heard the judge made the remark that the prosecution witnesses were truthful, impressive and honest. The judge did not distinctly refute these allegations. He merely said that he had no recollection of any of these comments whatsoever. There is a real possibility that the judge may have expressed his impression at the close of the prosecution case. This was so because it was also raised as a ground of appeal by the applicant, in his home-made grounds. He said that the judge was prejudicial against him from the start. He said that the judge chose to believe the witnesses right from the start. The judge congratulated the witnesses all through saying that they were good witnesses. This was raised by a layman. He was struck by what was said by the judge in the course of the proceedings. We come to the conclusion that after anxious consideration that there was such a possibility.

12. Many a time in the course of proceedings judges, hearing prosecuting evidence might feel that a certain witness was impressive and honest. But it would be a different matter were he to conclude that he was truthful. He should have kept an open mind before all the evidence had been heard. It would be unwise for any judge to form a confirmed opinion that a witness was truthful until all the evidence had been heard. We come to this conclusion there was a distinct possibility that there had not been a fair trial. In so saying we cast no reflection on the police officers who gave evidence or prosecuting counsel. The officers' evidence might well be very impressive. The officers might appeared to be honest witnesses. Having heard their evidence prosecuting counsel might well be justified in not conducting reexamination. Counsel had the conduct of the proceedings.

13. As we said there was a real possibility that the judge was so impressed by the prosecution witnesses at the time when the prosecution closed his case and before defence evidence was heard that he formed the impression that the two witnesses were truthful. We are not completely satisfied that there had been a fair trial. Accordingly the application for leave to appeal against conviction is granted. The application is treated as the appeal proper. The appeal is allowed. The conviction is quashed. The sentence is set aside. But having regard to the fact that the issue was not really resolved, we will order a new trial on a fresh indictment.

Representation:

Mr. Poll (D.L.A.) for appellant

Mr. Dale, D.P.P./respondent