The Queen v. Lee Ho Wai

CACC000379/1988

Coram: Hon. Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 14 April 1989

Date of Judgment: 14 April 1989

Date of Handing Down Reasons for Sentence: 9 May 1989

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J U D G M E N T

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Power. J.A.:

1. The applicant faced a charge of possession of dangerous drugs for the purpose of unlawful trafficking therein. The particulars of the offence were that on 19th August 1987 in Po Kong Chuen Road, Kowloon, Hong Kong, he had in his possession a dangerous drug, namely 2,254.85 grammes of a mixture containing 2,116.45 grammes of eaters of morphine for the purpose of unlawful trafficking therein. He was convicted after trial before Deputy Judge Daniell and a jury and was sentenced to imprisonment for 15 years. He now appeals against both conviction and sentence.

2. The facts upon which the Crown relied on were that a party y of Narcotics Bureau officers was keeping surveillance on a vehicle DR4928 which commenced at about 5 a.m. on the morning of 19th August 1987 at Chai Wan. They later kept the vehicle under observation when it came to be parked outside the China Resources Building in Harbour Road, Wanchai. The driver of that vehicle and the only person in it up to then was a man called Kong. Two of the officers, PC21097 who was the principal prosecution witness and PC22553, gave evidence that Kong got out of the car and went into the building and then shortly afterwards came out carrying a document envelope. At that time he was with another man and both of them boarded the car. PC21097 was the only witness who gave evidence, identifying the applicant as that second man. He said that at that time he over 25 ft. away from the man while he walked a distance of 15 ft. to the car. The car them drove off and it was followed to the Hsin Kuang Restaurant in Ying Fung Lane, Wong Tai Sin arriving at about 7.40 a.m. The second man got out of the car carrying the document envelope then went into the restaurant and returned a few minutes later with a yellow plastic bag which he put into the trunk of the car. He then walked away from the car. The envelope was later found to contain $275,000 and the yellow plastic bag was found to contain the drugs the subject of the charge. The walk from the car to the restaurant was about 10 ft. and the walk back of course was the same distance. It was not until 11th January 1988 that an identification parade held and at that parade, the one person who identified the applicant was PC21097.

The Grounds of Appeal were that:

"1. the Learned Trial Judge was wrong to rule that the appellant had a case e to answer. The evidence was that the appellant was the man who placed the plastic bag of dangerous drugs into the boot of the car on 19th August 1989 was not of a quality such that the Learned Trial Judge should have ruled that the Crown had established a prima facie case against the Appellant.

2. Alternatively, if the Learned Trial Judge was right to rule that that there was a case to answer, a lurking doubt exists in this case as to the correctness of the identification of the Appellant as the man who placed the said bag of drugs into the car on 19th August 1988;

3. Thereby and in all the circumstances of the case, the conviction recorded against the Appellant is unsafe and unsatisfactory."

3. The real matter in issue in the appeal is whether, given the nature of the identification evidence, the case for the Crown should have been left to the jury at ail or, alternatively, given that it had, whether this court is left with a lurking doubt.

4. The evidence came, as we have said, from PC21097. The first matter with which we will deal and first suggested weakness in the Crown case arises out of the evidence of the police officers with regard to the height of the two men observed. PC22553 said in his statement made on 20th August 1987 that the man with Kong (the man who was identified as the applicant) was 5'6" tall and that Kong was 5'8". He said that that man was not wearing glasses. PC21097 gave a similar description of the two men in his evidence. The applicant was at the trial shown to be 5'8" tall and the argument advanced by Mr. Litton is that that being so he cannot have been the person seen by the two police officers.

5. The weight to he given to this submission was very much a matter for the jury and it was left to them by the trial judge. They were entitled to take the view, which it seems they must have, that the police officers were, when speaking of heights, giving approximations and that their evidence, on a fair reading of it was saying no more than that the two men were of about medium height with one, Kong, being a little taller than the other man. This was very much a matter for the jury, it was properly left to them and that nothing can be made of it before this court.

6. Whether or not the applicant was wearing glasses and whether he usually wears glasses were also clearly matters for the jury. On the evidence they were satisfied that the person observed was not wearing glasses and were satisfied, by the other evidence, that that person was the applicant.

7. A matter of real complaint, in the submission of Mr. Litton, arises out of the conduct of the identification parade. The inspector who conducted the parade said, and her evidence was clear in this regard, that the applicant had been identified by PC21097 after viewing those on parade for about 2 seconds. The police officer himself said that he had looked at the persons on the parade for a minute to 1½ min. In this regard Mr. Litton also complains of what he suggests was an improper observation made by Crown Counsel in relation to this evidence. This whole matter was dealt with by the trial judge, who said

"As Mr. Gerber says, the witness had been in identification room for some 4 minutes and could have observed all the people on the parade before he actually walked on to the line-up.

Well, may he that is so, members of the jury, but this is not what the witnesses have told you, nor does it accord with Superintendent Ying's evidence. It was her account that as soon as she had finished speaking with the witness, he turned to her left, viewed the and within 2 seconds, said 'No.7'.

Well, members jury, what do you think of that piece of evidence? Do you think that Cheng's evidence is reliable on this matter or not? Do you think that when he confronted 8 men on all of roughly similar height and build, all wearing glasses, he could have made a certain identification in a matter of 2 seconds? You see, the Superintendent, you may think, is unlikely to be mistaken in the timing. She, she told you, kept a contemporaneous note of the proceedings."

8. We are satisfied that this was a very fair and adequate direction and that the matter was, given that direction, properly left to the jury.

9. Complaint is also made with regard to the wearing of spectacles on the parade. We are not satisfied that there is anything material in this. All of the persons on the parade, both the actors and the applicant, wore exactly the same kind of spectacles. Nothing was made of this point in cross-examination at the trial and, we are satisfied, nothing can be made of it before this court.

10. There is also a suggestion that we should have some doubt as to the propriety of the conviction given the evidence of the estimated age of the person being observed and the actual age of the applicant. The age of the person observed was put by the two police officers at over 25 and the applicant was, I think I am right in saying, at the time of the offence, 23½ Again an estimation of age is a matter of opinion. It is a matter as to which only an approximation can be given by any witness. The jury were fully aware of this. It was essentially a matter for their commonsense which they clearly had no difficulty resolving.

11. The real thrust of the appeal is that only one police officer identified the applicant and that he had only, it is Mr. Litton's submission, a fleeting glimpse of him. It was submitted that the trial judge should, given the guidelines in Turnbull [1976] 3 W.L.R. 445, have found that there was no sufficient evidence to go to the jury. Reliance is placed upon the statement of Lord Widgery, when he said at p.448:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

12. What then was the evidence of the police officer? He said in examination-in-chief dealing with the sighting which he made outside the China Resources Building:

"I was about 20 to 25 feet away."

He was asked:

"About how far were you from the car where it was parked?"

He said:

"Well more or less the same, about 20 to 25 feet."

Q. Now did the two men walk in roughly a straight line?

A. Yes.

Q. Where were you in relation to them? Were you facing them as they walked, were you to the side of them, or were you behind them?

A. At the time when they walked out from the China Resources Building, I was facing the front of, the private car. That is to say, I was at the left hand side of these two men. That's all.

Q. Now as they walked to the car, could you see their faces?

A. When they were walking towards the private car, I also started to walk towards it.

Q. Could you answer my question? Could you see their faces?

A. Yes.

Q. Clearly?

A. When they were boarding the car, I was able to see their faces clearly.

Q. Now as they were boarding the car, you told us that you had been walking towards it also?

A. Yes.

Q. So about how far away from them would you have been at the time they boarded the car?

A. I was about 15 feet away from the car."

He gave further evidence under cross-examination in which the following passage occurred:

"Q. Now no doubt you will remember my learned friend asked you whether you saw the two men clearly when they were walking to the vehicle?

A. Yes.

Q. And your answer was that 'When they were boarding the car, I was able to see their faces clearly'?

A. Yes.

Q. Now obviously, officer, boarding the vehicle took a matter of seconds.

A. Yes.

Q. And at that time you were 15 feet away from them?

A. Yes.

Q. Indeed, officer, wouldn't 1t be fair to say that by virtue of the nature of your duty, you cannot afford to be too close to the subject of surveillance?

A. Not so.

Q. Are you sure?

A. Yes.

Q. But they were not supposed to know about your surveillance isn't that right?

A. Correct."

The cross-examination later went on:

"Q. Now, officer, would you not accept that, once these people boaraded the vehicle DR4928, it became quite difficult to see them in the circumstances?

A. Not so. I was still able to see them.

Q. 15 feet away?

A. Yes, 15 feet away.

Q. They were inside the vehicle?

A. What is the degree of the view ...... of the clearness?

Q. Yes, perhaps I have not made myself entirely clear. What I was saying is that, once they boarded the vehicle, you were no longer able to see them clearly, isn't that right?

A. Correct."

13. That was in essence the evidence of the police officer who made the identification. What we must ask ourselves is whether this is a "fleeting glimpse" case. We are satisfied that there are several factors which distinguish it from such a case.

14. Firstly, this was a police officer on surveillance duty. This is an important fact. Such a person cannot be equated with a person, such as a robbery victim, who is, almost inevitably, off balance and under stress. In circumstances such as occurred in the present case the jury would be entitled to proceed upon the basis that the police officer was making his observation in a calm and concentrated way.

15. Secondly, these observations took place in daylight. They were not in darkness or semi-darkness and the that there was nothing to obstruct the view of the officer. There was no question here, as there often is in "fleeting glimpse" cases, of something intervening to make the sighting unsatisfactory.

16. Thirdly, the officer saw the person on three, or it might be said four, occasions. On the first, he observed him while he walked about 15 feet and was, when he commenced that walk, 20 to 25 feet away from him. He was able, he said, to observe the faces of the two men clearly just before they boarded the car and was then only about 15 feet from them. He then saw the man who he identified as the applicant on a second occasion when he walked about 10 feet from the car to the Hsin Kuang Restaurant. On the third occasion, he saw him when he walked back to the car the same distance. He said that he was then about 20 to 30 feet away from him and that he had a clear view of him. He was not asked any questions that would suggest that this evidence as to a clear view was incorrect and, indeed, as to the second occasions and the third occasions he was not really cross-examined at all.

17. We are satisfied that this was not a "fleeting glimpse" case and was not a case where the judge was required to direct the jury that they should return a verdict of not guilty without hearing from the defence.

18. Are we nonetheless, as Mr. Litton suggests we should be, left with a lurking doubt given all of the matters that he has raised? Having considered the arguments carefully we find that we have no such doubt. We are satisfied that the conviction was both safe and satisfactory and the application for leave to appeal against conviction is therefore refused.

Sentence

19. The Applicant was sentenced to imprisonment for 15 years. He seeks leave to appeal against that sentence on the ground that it is excessive. The quantity involved was 2,116.45 grammes of heroin base. It was an agreed fact this amount was the equivalent of 30,500 grammes of No.3 heroin with a street value of $2,460,000.

20. Mr. Litton has referred us to a number of cases which he suggests indicates that the sentence was excessive. In some of these it is not clear what the substance was: whether heroin base, No.4 or No.3 heroin. It is further impossible to ascertain therefrom any principle of sentencing policy. We found them of little assistance.

21. The starting point is we are satisfied, Chan Chi Ming v. The Queen [1979] H.K.L.R. 491, the landmark decision on sentencing policy in drug offences.

22. That case dealt with salts of esters of morphine in No.3 heroin form. It indicated that for amounts of No.3 heroin of about 1,000 grammes the proper range of sentence was from 8 to 12 years.

23. The mixture, which is what Chan Chi Ming indicated must be looked at, of No.3 normally contains a relatively small proportion, much less than half, of salts of esters of morphine.

24. While keeping sight of the fact that this Applicant had heroin base we nonetheless find ourselves helped in the assessment of the sentence by the evidence of the conversion rate.

25. This is not a departure from the sentencing norms for this type of offence. Since the decision in Pravit Pramechit v. The Queen, Criminal Appeal 665/1982 (unreported), and provided there is conversion evidence, as here there was, then the upper level range of the "very substantial" in Chan Chi Ming is extended into the addition to that range of "cases of an unusually serious nature". The quantity of the mixture remaining paramount. This justifies the Courts going beyond the twelve years guideline though there is an upper limit on the quantum of sentence simple mathematical progression being neither accurate or fair.

26. Even where, in cases concerning heroin base, there is no direct conversion evidence the Courts have tended to impose sentences which extend the Chan Chi Ming range.

27. Given the finding of the trial judge, which, we are satisfied, was fully justified, that "in this transaction [the applicant] played a prominent role" and obtaining guidance, in the way indicated above, from Chan chi Ming we are by no means persuaded that the sentence of 15 years was excessive.

28. We note further that The Queen v. Cheng Yeung No.460 of 1988, a decision which was delivered on the morning of this hearing, supports the propriety of the approach we have taken and, indeed, indicates that a substantially higher sentence might well have been appropriate.

29. The application is dismissed.

Representation:

I.G. Cross, Esq. & Miss Catherine Fung (Crown Prosecutors) for the Respondent

Henry Litton, Esq., Q.C. & Christopher Grounds, Esq. (Messrs. Raymond Tang & Co.) for the Applicant