Kwong Wun-wah and Others v. The Queen

CACC000304/1981

Coram: Liu, J. in Court

Date of Judgment: 8th June, 1981

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JUDGMENT

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1. This is an appeal against conviction by the 1st appellant who was the 1st defendant in the court below. The facts are the simplest of their king.

2. On the 5th December last year, somewhere outside the Chat Kee Restaurant at 23 Pine Street, the 1st appellant together with others were kept under surveillance by police officers. Three in the group were seen spinning coins. The 1st defendant was soon approached by a Chinese male, and what appeared to be money notes changed hands. Thereupon, the 1st appellant beckoned to the 4th defendant before the learned Magistrate. The 4th defendant disappeared into a set of staircase on the same side and returned with some article in his hand, which was handed over to the Chinese male. Soon thereafter two more Chinese males approached and spoke to the 1st appellant and the 2nd defendant in the proceedings before the learned Magistrate. What seemed to be monetary notes were passed to both these youths, and the 1st appellant again signalled the 4th defendant. According to the police officers, the 4th defendant repeated the same chore resulting in some articles being handed over to the Chinese males. There was a third occasion on which another Chinese male approached the 2nd defendant on this occasion no signal was observed from the 2nd defendant to the 4th, who nevertheless repeated the same routine as he had done before.

3. Soon after the third incident, the 4th defendant was seen to have spoken to the 1st appellant who in turn communicated with the 3rd defendant. The 3rd defendant entered the restaurant, made a phone call and thereafter made his way across the road to No. 22. Not long later, the 3rd defendant re-emerged from No. 22 with a match box. He was seen waiting to cross the road in the direction of the group giving precedence to a passing lorry. The police officers had such an unobstructed view that the 3rd defendant was even clearly seen tossing up and down the match box in his hand.

4. During the three incidents that I have just repeated, the rest of the defendants, the other three, were seen spinning coins in the same vicinity, keeping a lookout and conversing with the other defendants.

5. The Grounds of Appeal were six of which Grounds 1 and 5 were no longer pursued specifically by counsel for the appellant. Emphasis was placed on Ground 2, and much play was made of an alleged insufficiency of evidence relating to the nature of the articles parted possession with in the three incidents I have described. It was further urged upon this court that there was a total lack of evidence to establish the other defendants' knowledge, including the 1st appellant's, of what the 3rd defendant was doing across the road. Counsel drew the court's attention particularly to the fact that none of the Chinese males involved was called by the prosecution. On Ground 3 of the Grounds of Appeal it was submitted that the 3rd defendant might have been arrested or should have been arrested much later. He should have been arrested, so ran counsel's argument, after he had joined the group of six. It was argued that after all the 1st appellant and the other defendants were faced with a charge of trafficking of the quantity of drugs found in the match box in the possession of the 3rd defendant.

6. A further salient fact was heavily relied upon by counsel for the 1st appellant. It was submitted that whilst the 1st appellant was seen having put what appeared to be money notes into his right trousers pocket, $110 in notes were subsequently retrieved from his upper left suit pocket. Inspector Suen testified before the learned Magistrate that what appeared to be money notes were, he thought, put into the right trousers pocket of the 1st appellant, but he was not sure. Moreover, after the inspector had given the order for the group to be raided, there was little evidence before the learned Magistrate as to precisely what transpired as regards the 1st appellant. What was said by the inspector before the court was that he cautioned all seven defendants, and constable Leung, who on the instructions of the inspector searched the 1st appellant, subsequently found $110 notes in his left upper suit pocket. I do not, for this reason, share counsel's optimism that evidence of the location from which the money notes were actually retrieved was sufficiently weighty to cast suspicion. In the circumstances, it would appear to be a matter of little significance.

7. Similar criticisms were relied upon in support of Ground 4 of the Grounds of Appeal. In the end, counsel for the 1st appellant submitted that it was unsafe and unsatisfactory for the conviction of the 1st appellant to stand.

8. Counsel was in apparent difficulty, when invited by the court, to suggest the nature of a possible transaction other than sales of dangerous drugs in the light of the evidence. Taking into consideration the evidence of past activities from police officers who had kept the defendants under surveillance at all times, it is in my view an irresistible inference that the dangerous drugs in the match box were to be likewise disposed of and that the 1st appellant was, in league with other defendants, trafficking in dangerous drugs in that match box on the 5th December last year. No other possible conclusion could have reasonably been reached by any court.

9. In the circumstances, despite the eloquence and the well-reasoned submissions of counsel with which I was unable to agree, the appeal against conviction by the 1st appellant must be dismissed. Let what I am about to say not be taken as any reflection on the conduct of counsel in these proceedings. The appeal of the 1st appellant is, in my judgment, absolutely unmeritorious. I order that the appeal be dismissed, conviction affirmed and the sentence imposed by the learned Magistrate to run from today.

Representation:

Miss C. Remedios instructed by D.L.A. for 1st Appellant.

Mr. Bey, counsel for the Crown.