Yu Chung-keung v. The Queen

CACC000392/1977

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Coram: Leonard, J.

Date of Judgment: 12th May 1977

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JUDGMENT

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1. I allowed this appeal against conviction and sentence promising to give reasons.

2. The appellant had been convicted of possession of a dangerous drug less than 0.01 of a gramme of heroin. The only evidence against him was that of the arresting officer whose evidence-in-chief was that he searched the appellant in the street at about 8.35 p.m. on New Year's Day this year and found the three packets the subject matter of the charge in his left trouser pocket and the evidence of the dangerous drugs collecting officer whose evidence was formal. The appellant was represented in the court below and the case was a hard fought one. On finding him guilty the learned magistrate gave oral judgment on the 22nd March, 1977. He called for the usual reports and on the 6th of April 1977 ordered the appellant to be detained in the detention centre.

3. The learned magistrate's statement of findings was completed exactly a month after the date on which he had found the appellant guilty namely on the 22nd April 1977. At the hearing of the appeal counsel for the appellant produced counsel's note of the oral judgment and reasons for conviction given on the 22nd March 1977 by the learned magistrate.

4. It appeared from correspondence produced to me that on receiving the statement of the findings of the 22nd April 1977 the solicitors for the appellant had written to the learned magistrate asking the learned magistrate to agree counsel's note of his oral judgment. But the learned magistrate through his clerk refused to read counsel's note but returned it apparently considering that it would be improper for him to concern himself further with the matter as it was then subject to appeal, It should be noted that the record gives no indication of the reasons given orally by the learned magistrate for conviction reading merely: "Finding - guilty" so that either the magistrate cannot have appreciated that the solicitors for the appellant were alleging a faulty record or the observations of the Full Court in Reg. v. PAU Wing-shing⁽¹⁾ did not come to his mind. These observations read:

"We have no doubt that the better procedure, where it is sought to supplement a defect in the record taken by the magistrate, is that reference should firstly be made to the magistrate and, where possible, that the defect be cured by an amendment to the magistrate's record. Only if the record is not amended should resort be made to affidavit evidence."

Be that as it may I considered I should have regard to counsel's note confirmed as it was by affidavit. I will deal with such discrepancies as may be said to have existed between the learned magistrate's oral judgment and his statement of findings later, when I have considered the magistrate's note of the evidence so as to establish the facts which were before him.

5. The essential witness for the prosecution was cross-examined at some length. The cross-examination is not recorded verbatim in the form of questions and answers, but it is clear that the witness was badly shaken in cross-examination. The cross-examination indicated that it was the case for the prosecution that the appellant was arrested while walking down Spring Garden Lane and passing Spring Garden Building going towards Johnston Road. The witness was adamant that the appellant was not coming from the Johnston Road direction. His case was that he was alone when he arrested the appellant and he denied that he had arrested the appellant in the company of another officer who had said to him "This is your case, isn't it?" and he further denied that he asked the appellant where he had obtained the three packets. His evidence thereafter reads most peculiarly:

His earlier evidence was that the accused had been asked to sign the envelope into which the packets had been put and had refused to do so. I should note one further discrepancy - one of time. The witness said that the arrest was affected at 8.35 p.m. and that he and the appellant arrived at Wanchai Police Station at 9.30 p.m. In cross-examination he stated that he arrested the accused about 9.35 p.m.

6. The appellant gave evidence on oath, put his character in issue and gave particulars of his employment with the Roads Department of the Public Works Department where his father had also worked. His story was that on the afternoon of New Year's Day he had gone to visit a friend at the friend's mother's house in Lockhart Road where he had watched T.V. until 8.20 p.m. He left her house and began to walk home crossing Hennessy Road and then Johnston Road. In order to catch a public light bus at Wanchai Road near Queen's Road, East he used Spring Garden Lane as a short cut through from Johnston Road. He pointed out by means of photographs and a plan exactly the route followed by him and where he was arrested. He said he had stopped in the middle of Spring Garden Lane to listen to a radio recording grey hound racing and had just resumed walking away from the direction of Johnston Road when he was approached by two persons, one of whom handcuffed him and handed him over to the other saying: "This case is yours." He produced a photograph showing where he was pushed and handcuffed. He stated that he was searched and in effect that the three packets, which he did not see at the time, were attributed to him. He was then bullied by the prosecution witness and after the prosecution witness had made a telephone call was taken to a reporting centre and then to Wanchai Police Station by police transport. He stated that he refused to sign the envelope in the station because he did not see what was put in it. Whatever was put in it, he said, could not have been taken from him. He denied being a drug addict and said he had never been in trouble with the police before. He denied that the prosecution witness had at any time asked him any questions about dangerous drugs. Despite the great detail into which he went in describing his various movements he was cross-examined in a most desultory fashion and does not appear to have been self-contradictory.

7. He called the lady at whose house he had claimed he spent the afternoon and she confirmed that he had done so leaving her home some time after 8.00 p.m. Her evidence was of importance, in that it tended to made the appellant's evidence that at the time of his arrest he was coming from Johnston Road direction stronger. Not only did the appellant put his character in issue but a surveying assistant from P.W.D. gave him an excellent character reference.

8. While appreciating the disadvantages under which an appellate judge labours in not seeing and hearing the witnesses I must say that on a consideration of the written evidence having regard particularly to the fact that the prosecution witness was severely shaken in cross-examination I was left with the gravest doubts as to the appellant's guilt for where the appellant's story could be supported it was supported. The appellant was clearly no ordinary carrier of dangerous drugs but a highly thought of civil servant following his father's foot steps with the Public Works Department and his immediate reaction was to deny his guilt and refuse to sign the envelope into which the packets were sealed. My doubts on the record of evidence then were by no means were "lurking doubts" so that appreciating that the learned magistrate had advantages not enjoyed by me in hearing and seeing the witnesses I examined with care not only his statement of findings but also counsel's notes of his extempore judgment. In his extempore judgment the learned magistrate commenced by setting out the standard of proof required, the presumption of innocence and that character was in issue. He dealt very briefly with the evidence of the lady in whose house the appellant had spent the afternoon and early evening and his only comment on it was "her evidence stopped short of what happened after you left her house." This is correct but when one looks at the question from what direction the appellant was coming when he was arrested it was of some significance in that it suggests that the appellant was telling the truth when he contradicted the police officer as to the direction which he was going when arrested. This was its only significance. The note of the extempore judgment continues:

"Only your evidence and that of the police officer. Looked at in that way case comes to one man's word against another. Sometimes witnesses contradict themselves in court as to what they saw or heard. The evidence of self and evidence of P.W. 1 in such direct conflict but no doubt conflict in evidence can be due to mistake. One or other has deliberately set out to deceive court. Case serious enough this morning has become more serious as case developed. Your defence relies on whether P.W. 1 committed perjury or whether you did. P.W. 1 - there is also allegation of police assault when you alleged he kicked you. When court finds itself in position of having to find which witness to believe the court must find motive. Motive: common ground that neither of you knew each other before that night. So what defence says is that police officer took over from colleague perfectly innocent person of Hong Kong previously equppedd himself or supplied himself with 3 packets and decided you innocent victim to charge with offence. When court asks what police officer has to gain by arresting you an innocent person what he gain. If your version is correct then not plead guilty - must be trial and allegations made against him. So he knew there would be trial and you plead not guilty and he would be forced to commit perjury. That means he put himself in peril and falsely conspiring to put charge against you of which you are innocent. He found to risk his career and he knew it then. That's what he stood to lose and stands to lose. What has he got to gain? This charge is serious enough for you refer to fairly minimal quantity of drugs compared to what comes before the court day after day. What comes before the court day after day. What police to gain when this offence stands low in order of police crime. Court finds it hard to see whether the risk he running disproportionate to his gain. Court by nature of case impelled to consider motive and therefore forced to consider whether any motive and interest in outcome in proceedings."

And later:

"Court agrees with Defence counsel P.W. 1 did have inconsistencies and discrepancies in his evidence. Court has plenty of opportunity to observe that witness because in the court a long time. Far longer than usual in a charge of this nature. He subjected to a barrage of questions. Many quite remote to the main issue which the court is trying to decide. At the end of questioning the court had no doubt he was quite confused because he asked to remember so many questions relating to matters which he had no idea .... Court decides that he honest witness and decides on important matter whether you had three packets was there no inconsistencies on vital matters before the court. Court came to final assessment on matter after had you in witness-box. Most of your evidence denoted to surrounding circumstances. Your evidence about planting was very slight. Something you didn't even see any more than you saw in the lights in the police station. The more the court observed the more the court decided it was that you plausible young man, capable of expressing yourself and putting forward picture of yourself. The more the court heard the more the court decided you dishonest."

In the statement of findings prepared on the 22nd of April 1977 the learned magistrate does not allude to the question of motive. The relevant paragraphs of the statement of findings read as follows:

[I pause to interpolate that it was inevitable in the circumstances that much of the testimony of the appellant should have been concerned with collateral matters. On either account what happened at the time of arrest must necessarily be described in a few short sentences. The only available test as to whether the prosecution witness was telling the truth about what happened on arrest was by examination as to whether he was telling the truth about the surrounding circumstances.]

"His testimony about the production of the 3 packets in the street did not in my opinion have the 'ring of truth' which so marked the evidence given by P.W. 1 and accordingly he did not have the effect of raising doubt in my mind as to the truth of the allegation in the charge."

As to the learned magistrate's use of the expression "the ring of truth" I would note that the police officer concerned gave his evidence in Chinese. I do not know whether the learned magistrate understands Chinese. He may well do and it may well be that with this understanding the learned magistrate was in a position to detect "the ring of truth" that I have been unable to detect from the learned magistrate's note of the English translation of his evidence. Again I have some difficulty as to why the evidence of the appellant should be stigmatised as "plausible" when no inconsistency has been shown to exist in it. There was certainly no question of the appellant having wilted in cross-examination or having been disturbed by cross-examination as was the police officer. Again the significance of the evidence of the witness who spoke of the appellant's where about during the afternoon and early evening prior to his arrest appears to have escaped appreciation. The matter giving rise to my greatest worry stems from the learned magistrate's preoccupation with motive in his assessment of the evidence of the police officer. This preoccupation appears in his extempore judgment but not in his statement of findings. His statement of findings having been written a month after the event I consider that the extempore judgment must more closely mirror his thoughts at the time of conviction. His preoccupation with motive (concerning which there was no evidence appearing on the record) coupled with the suggestion that looked at in one way the case comes to one man's word against another creates unease in my mind as to whether he had adopted the correct approach. It is now trite law (as appears from Reg. v. PAU Wing-shing⁽¹⁾ that it is not correct to approach the question of the guilt or innocence of the accused on the basis of deciding which of the two stories the court should believe. Commenting on PAU Wing-shing⁽¹⁾ Huggins, J. in LOK Chi-wai⁽²⁾ said:

"A court must always bear in mind the possibility that neither story is true and the law requires in a criminal case that the court shall be satisfied that the prosecution story is true."

The learned magistrate was so satisfied but a major factor causing him to be satisfied was his consideration as to the lack of motive on the part of a prosecution witness to lie and as to this there was no evidence whatsoever. Suffice it to say that there have been cases (admittedly few when compared with the frequency of the allegation) in which police officers have been known to lie and to frame innocent people. The motives for their doing so remain unknown and may even arise from some mental quirk.

9. The extempore judgment of the learned magistrate and his statement of findings did not remove from my mind the very great doubt as to the appellant's guilt which arose from my perusal of the record of evidence. The appeal was accordingly allowed and the conviction and sentence quashed.

Representation:

Mr. Ronald Mayne (P.H. Sin & Co.) for the appellant.

Mr. C.M. Hindle C.C. for the Crown/respondent.

(1) (1970) H.K.L.R. 47,51.

(2) (1973) H.K.L.R. 577.