The Queen v. Tsang Pui Lam

HCMA000147/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.147 OF 1996

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Coram : Hon Gall, J. in Court

Date of hearing : 11th June 1996

Date of judgment : 11th June 1996

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JUDGMENT

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1. The appellant was convicted on 28th December 1995 in respect of one count of trafficking in a dangerous drug. The allegation by the prosecution was that on 5th August 1995 outside Po Yuen Shopping Arcade in Hung Hom, he unlawfully trafficked in a dangerous drug, namely one plastic straw packet containing 0.13 grammes of heroin hydrochloride.

2. The evidence led by the prosecution was that PW1 dressed in a suitable manner went to the area where the accused was and he was offered drugs which he purchased for the sum of $170, which sum had been given to him and marked by the inspector when he was briefed at the beginning of this operation. PW1 was unarmed and had no handcuffs, he reported the matter to the observation post. There was a discrepancy as to whether he reported it to PW2 or the sergeant but it is certainly the evidence of PW2 that he and the sergeant were there at the observation post together when the report was made. PW2 approached the accused and arrested him and words were said to have been said in answer to the caution. The parties went back to the police station, there a report was made to the duty officer and the defendant was taken into a room. "Then PW1 gave the packet of suspected dangerous drug to me, I put it into a valuable envelope I and defendant both sign it. At 9:17 p.m., I sealed the envelope in the presence of a duty officer and the defendant and handed it to the duty officer." Later, in the same evidence "I look at this packet brought back by the DDPC and I can see the valuable envelope I mentioned earlier. I produce it. It is marked P4. That was accompanied by a Government Chemist Certificate marked P5."

3. The first complaint made concerning this conviction is that the learned Magistrate erred in that he found that the chain of evidence from the duty officer to the Government Chemist had been established beyond reasonable doubt where Mr Hung argues that a lacuna exists. It is trite law that a Government Chemist Certificate is prima facie evidence of its contents unless some attack is made upon it. Looking at the Government Chemist Certificate it is apparent that on 7th August 1995 one sealed packet marked with the CCR number of this particular case was received by the Government Chemist and the contents analysed was found to contain 0.13 grammes of heroin hydrochloride.

4. The officer, PW2, testified that the packet brought back by the DDPC was the packet that he had signed and sealed. The Government Chemist testified, through the Certificate, to the effect that the packet was sealed when he received it. I take into account that it is described as a valuable exhibit or valuable envelope. This type of envelope is familiar to the courts and is one which having been sealed, cannot be re-sealed or opened without it being obvious to the Government Chemist. This is what is called a tamper-proof envelope. I am satisfied therefore, on the face of the Government Chemist Certificate, that he received a sealed envelope and the same envelope he received is the one identified by PW2 in court and the same packet as he said he sealed having signed it with the Defendant. I am satisfied that the chain is made out and that the drugs analysed were the drugs handed to the Duty Officer at that time.

5. The second matter raised by Mr Hung is that various items of the evidence were inherently improbable in the words of Litton, J.A. "all artificial and that a lurking doubt would thereby exist."

6. I accept that the evidence of PW1 is that he was given exactly the sum asked him by the appellant when he sought to buy drugs. The learned Magistrate dealt with that in a common sense and robust manner. He dealt with it on the basis that it is not surprising to him that police in the area who carried out anti-drugs operations should know the charge for drugs in that area. Secondly, various complaints were made concerning the actions of PW2 and PW1. One is that PW1 did not arrest the appellant at the time he was approached. He gave an explanation as to that - the nearby presence of three persons he took to be drug addicts and fears for his safety, being unarmed. They were considered by the learned Magistrate. It is not for me to debate whether or not his acceptance of that explanation was proper but I have to look at whether he considered that explanation and considered it critically, he did so.

7. The discrepancy between the evidence of PW1 and PW2 is to whether the report by PW1 was made to PW2 or to the sergeant is without substance. It appeared from the evidence of PW2, and he was not cross-examined upon that, the sergeant was present at the time the report was made. I am urged to look at the differences between the accounts given by PW1 and PW2 of the actual words used by the appellant at the time he made his confession. The difference is one as to whom the confession was directed, not whether it amounts to a confession in the first instance, and secondly, Mr Hung complains that this is an artificial admission as why would he admit to something which on the face of it was obvious. Taking the first point, it is no surprise to these courts that slight difference either in the person addressed or other details appearing between what was given as evidence of an admission or testimony of what was said by a person at any particular time. That matter causes me no concern, nor does the obviousness of what was contained within the confession. The fact that it was not written down, post-recorded, and put in a note signed by the appellant, is a matter to be considered. But it was before the Magistrate, that no such evidence was proffered to him. It was part of the case before him and to speculate why it was not done or draw conclusions from it other than the fact that it was absent would be to speculate.

8. I have dealt in the main with all the matters raised by Mr Hung. I do not propose to deal with the rest which are not matters which cause me concern. The Magistrate carefully considered all the evidence before him, he considered properly the manner in which he was to evaluate to the credit of each of the witnesses and he reached, in my view, an entirely proper conclusion. The appeal against conviction is dismissed.

Representation:

Mr Jackson Poon, S.C.C., for Crown

Mr Andy Hung (D.L.A.), assigned for the Appellant