The Queen v. Li Fu Shing

CACC000325/1988

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Coram: Hon Kempster, Hunter & Macdougall, JJA

Date of Hearing: 11 May 1989

Date of Judgment: 11 May 1989

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J U D G M E N T

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Hunter, JA :

1. On 27th June 1988, after trial before O'Connor J and a jury, the applicant Li Fu Shing was found guilty of one count of possession of dangerous drugs for the purposes of trafficking. The count charged that on 2nd February 1988 in Fa Yuen Street, he was in possession of 903.29 grammes of a mixture containing 58.41 grammes of salts of esters of morphine. The issue joined in the court below raised a pure question of fact as to who was telling the truth in estimation of the jury, the two police officers who were responsible for his arrest or the applicant himself.

2. The case as presented to the jury by the Crown was very simple. Two police officers in plain clothes were on patrol in Fa Yuen Street. They both said that the applicant walked towards them in Fa Yuen Street whereupon they stopped him and announced that they were police officers wishing to speaFak to him. This happened outside 97 King Hing Building. Almost at once he ran off into that building. Just inside he threw away a plastic bag which he had been carrying. Both the judge and the jury went on a view and saw the precise location. The judge reported after that view that there was a short passage some ten feet long which led to two short flights of steps; six steps up to the first platform and three up to the second. The evidence of the first police officer who gave chase was that he caught, stopped and arrested the applicant on that second platform. As the judge reminded the jury in the course of his summing-up the place where he was stopped and the place he was arrested was each visible to the other. In other words you could stand on the pavement and see exactly where he was arrested.

3. The second police officer's evidence was that he likewise gave chase but stopped first of all to pick up and retrieve the plastic bag. In that bag were found drugs in the quantities named in the count. There was no issue about that and there was no evidence directed to rebut the presumptions of knowledge and trafficking arising if the applicant was in possession. So the only contested issues before the jury were "was the applicant in fact in possession of this bag? Were the police telling the truth? Or was he telling the truth when he said he came to the building from a different direction; was not stopped by the police at all; but was pursuing his lawful occasions climbing the stairs when another man ran past him, whereupon the police stopped and arrested him?

4. The way it was put by the learned fudge in the course of his summing up was to comment upon the defence of mistake and point out to the jury that mistakes can be made and that much depends upon the length of time the person is under observation. The judge then went on to point out that there was really no room for mistake in this case if the police officers were telling the truth. Because if they were telling the truth it was not a case of identification in the strict sense of the word, where somebody is seen and then escapes and has to be identified thereafter. Then identification is at the heart of the case. This is more a question of participation. Is it the same person that they say they stopped, kept sight of, and then arrested a short distance away?

5. He summed up the matter in this way :

"You may think that a mistake is not possible if the officers were truthful, and it may well appear to you that in this case there is deliberate lying either by the police or by the defendant. The matter is in your hands, members of the jury, for you to consider".

That was the heart of this case. The jury by their verdict believed the police officers and disbelieved the applicant.

6. There are in our view no grounds whatever for criticising the sufficiency of the summing up, and there is nothing which leads us to doubt the propriety of this conviction. The application accordingly fails and must be dismissed.

Representation:

Mr William Howard, QC, Miss Maggie Poon (M/s Ip & Willis) for Applicant

Mr Lugar-Mawson for Crown/Respondent