The Queen v. Tang Hok Kau

CACC000349/1989

BETWEEN

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Coram: Hon. Kempster, J.A., Bewley and Duffy, J.J.

Date of hearing: 9 February 1990

Date of delivery of judgment: 9 February 1990

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JUDGMENT

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Bewley, J. (Giving the judgment of the court)

1. This is an application for leave to appeal against a conviction, by His Honour Judge Sharwood in the Distrct Court, for possession of dangerous drugs for the purpose of unlawful trafficking and for resisting a police officer in the execution of his duty.

2. Evidence was given for the prosecution by two uniform branch police constables on high rise patrol in Block 28, Wong Tai Sin Estate. They saw the applicant holding a red plastic bag outside a lavatory on 4th floor. When approached the applicant threw the bag to the ground and pushed one of the officers in an attempt to escape. They subdued the applicant and found in the red plastic bag the following items : a plastic bag containing 4 packets of suspected heroin; another plastic bag containing 20 packets and a smaller plastic bag of suspected heroin. The Government Chemist later certified that a total of 111.82 grammes of heroin mixture was contained therein.

3. On his arrest the applicant said that the articles were not his and that he had only gone there to urinate. In his evidence he said that he lived on the staircase at 5th floor of Block 27 in that estate. He had gone to look for a friend who lived on 3rd floor of Block 28. He intended to use the lavatory on 3rd floor - not on 4th floor - but two shadows rushed out and attacked him who proved to be the police officers. Two other officers arrived and also hit him. He said he did not have the bag or the drugs and maintained that the red plastic bag was later taken from the lavatory by the officers.

4. It was formally admitted by the prosecution that no fingerprints were found on the exhibits and that the applicant was taken to hospital suffering from multiple superficial abrasions.

5. The trial judge found that the prosecution witnesses were impressive and credible and that the applicant was unimpressive and incredible. He did not accept the alleged coincidental bursting out of the lavatory by the police as the applicant was about to enter. He found an example of the applicant's mendacity in his evidence that, while the police were beating him, he said "You are fabricating against me. These are not mine." This followed his earlier evidence that he did not see the drugs until after the assault. Finally, he found that the applicant's injuries were consistent with the struggle described by the officers.

6. The applicant, who is unrepresented, has filed grounds of appeal, some of which he has enlarged upon before us. One ground was that the trial took only one and a half hours. The judge appears to have taken a full note of the evidence, it was a simple issue and there were only three witnesses. The time taken indicates expedition rather than haste.

7. He also alleged that the judge was biased because the applicant was 20 minutes late arriving. Judges are used to this and it would not have led to any prejudice against him.

8. He submitted that there were four police officers at the scene, but only two gave evidence. Although he said in evidence that four officers were present, that was not suggested to the prosecution witnesses in cross-examination. No doubt, had he been able to supply their numbers, they would have been tendered for cross-examination.

9. A further ground was that, two hours earlier, the applicant had been stopped by PC33, who must therefore have been prejudiced against him. That matter was not put to the officer concerned. He also alleged that PC33 was accompanied by PC11387, not PC272. This again was not put and was unsupported by evidence.

10. The applicant also submitted that the key to the lavatory was still in the lock, after it had been sealed by the Housing Authority. Again this was not put to the officers and there was no evidence of this fact.

11. Additional grounds of appeal were submitted in a letter to the Registrar. The applicant said that the presence of four police officers indicated a trap. As stated above, there is no evidence that four officers were present.

12. He argued that, as there were no fingerprints on the exhibits, he could not have had them in his possession. We note that fingerprints would not necessarily be left on plastic bags and that a lack of fingerprints does not mean that the exhibits were not touched by the applicant.

13. The applicant maintained that his escape route was blocked and a drug trafficker would have been expected to return to the lavatory in order to flush away the evidence. There are a number of reasonable explanations why this did not occur : there may have been no time; perhaps he was not sufficiently quick-witted; the exhibits may have been too bulky.

14. The applicant said he was not charged with resisting arrest until after he made a complaint to CAPO. There is no evidence of this. PC272 admitted that he did not caution him for resisting arrest but, in the circumstances, that was unnecessary.

15. Finally, the applicant maintained that Police Standing Orders were breached by the officers patrolling from the ground floor up, not vice versa. Again there is no evidence of this and the matter was not put to the officers.

16. In truth, this was a simple factual issue. The judge believed the police officers, whose evidence was both consistent and credible, and he disbelieved the applicant. Nothing has emerged today that leads us to believe that the judge might have been wrong. We therefore dismiss the application, which we find is so lacking in merit that we order three months loss of time served since the date the applicant's notice was filed.

Representation:

Mr A.A. Bruce, Assistant Solicitor General, for Respondent

Applicant in person