R. v. Wong Ka-lun

CACC000400/1995

IN THE COURT OF APPEAL

1995, No. 400

(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. & Mortimer, J.A.

Date of hearing: 3 November 1995

Date of judgment: 3 November 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant faced two charges. The first was trafficking in a dangerous drug upon which he was jointly charged with two other defendants. It particularized that he has unlawfully trafficked in just over a kilo of cannabis on 24th June 1994 at Chui Chiu Village, Yuen Long. The second charge which was one of resisting contrary to the Police Force Ordinance. It particularized that on 10th July at the Tai Koo Restaurant, 27 Percival Street, he resisted Detective Police Constable 22340 in the execution of his duty. He pleaded not guilty to both of those charges and was, after trial in the District Court before Deputy Judge Lung, found guilty and ordered to be detained in a training centre. Because of the way in which this appeal has been argued, it is necessary for us to canvass the facts of the Crown case as found by the trial judge.

2. On 24th June Sergeant 45720 and Police Constable 50441 were acting as undercover officers posing as buyers of cannabis. They went to the Fountain Restaurant in Yuen Long where they met two persons called Ah Sam and Alex. When they met these two there were two others sitting at the table. Ah Sam introduced them as Ah Ming and Ah Lun, Ah Lun being the applicant. Ah Sam said that they were his "Sai Lo" of his three dots and that Yan Wo was their "Ah Kung". They sat at the table for some time talking, the tenor of the conversation being that the two undercover officers wanted to purchase some cannabis. Ah Sam asked the Sergeant to give $20,000 for 1 kilo of cannabis saying that after the money was paid he would take them to the Shui Tsui Village to get the cannabis. He said that he, Alex and the two police officers would travel in a taxi and Ah Ming and the other applicant would travel in another taxi and that Ah Ming and the applicant would be there to protect them. When saying this Ah Sam told Ah Ming and the applicant that once the sergeant's kilo of cannabis was fixed they would be treated to a meal in the evening and both Ah Ming and the applicant responded saying "Thank you, Tai Lo". The money changed hands and they went by taxi to the village. There they met a man called Kwong Tau Tak. He took all of them into a stone hut where a hand-rolled cigarette of cannabis was lit and tried at least by the sergeant and one or two of the others. Kwong Tau Tak then took the sergeant and Ah Sam to a car to pick up the cannabis. The police constable remained chatting in the hut with the applicant, Ah Ming and Alex. Later Ah Tak returned to the hut, made a phone call and left. Alex then called Ah Sam and after talking to him gave $100 to Ah Ming and told him and the applicant to play billiards. They then left the hut.

3. As to the second charge the evidence was that on 10th July 1994 at about 7:25 p.m. a police party consisting of 20 members raided the Tai Wo Seafood Restaurant in Percival Street, Causeway Bay. One of the officers saw the applicant about 5 to 6 feet from him and shouted "Police, don't go". The applicant paid no attention to him, ran towards him, pushed him with both hands. He was forced backwards but then threw himself onto the applicant, subdued and arrested him.

4. The applicant gave no evidence so the only evidence before the court came from the police officers.

5. Mr. Matthews, who appears for the applicant, has argued five grounds three of which relate to the first charge. He firstly contends that the trial judge wrongly failed to take into account the clear record of the applicant when considering what weight to give the applicant's evidence as contained in his cautioned statement. The cautioned statement was very brief indeed. What the applicant said was:

"On that day, Wong Man-sum asked me out to have fun. As we passed Shui Che (sic) Tsuen, two persons approached us. Wong Man-sum walked over to the two persons and chatted. Afterwards, I continued to have fun with Wong Man-sum. I don't know what Wong Man-sum talked with those two persons."

When dealing with the record, the judge said:

"That the defendant is 14 years old and has not committed any offence means that he is less likely then otherwise might be the case that he would commit the crime now."

The trial judge should, properly, have given himself the second part of the standard direction as to character. However the real issue in this matter was the credibility of the police officers. When considering this ground, we cannot but have in mind that the applicant's statement was, it is not unfair to say, wholly inadequate on its face as an explanation of what he did on that evening. It was further, and we consider this important, not in accord with the case which was put in cross-examination which was that he had been present throughout but had not been in a position to hear or assent to what was going on. In those circumstance we consider that there is nothing of any real materiality in this first ground.

6. The second ground is that the judge wrongly relied on prejudicial evidence containing "triad connotations without having heard expert evidence in relation to" that evidence. The first comment we make on that ground is that there was no evidence that the words had triad connotations. This suggestion appears only in the grounds of appeal. They were, it is true, the sort of words that the courts are commonly told are used by triads or quasi triads. There was, however, no evidence that they were triad terms. There was, indeed, no mention of triads from any of the police witnesses. The evidence which they gave was simply evidence as to what was said to them and it was, further, given without objection. Evidence of what can be broadly termed "gang slang" coming from the police officers who were merely re-telling what had been said to them is clearly admissible evidence and, in the present case, no improper use was made of it.

7. The third ground is that the trial judge wrongly drew the inference that the presence of the applicant at discussions between the undercover police officers and the trafficker of the dangerous drugs made the applicant a party to the transaction. We have already outlined the evidence that was before the judge. We consider that it suffices to say with regard to this ground that there was ample evidence upon which the trial judge could act in coming to his decision that the applicant was involved in the transaction which occurred on the 24th of June, 1994.

8. We turn now to the two grounds which relate to charge 14. It was suggested that the trial judge wrongly relied on the evidence of the 3rd prosecution witness who had not made any record of the alleged incident save from a witness statement made by him some eight months later. Again there is little that we can say in relation to this ground. The trial judge had that evidence before him. There s no suggestion that he did not give full consideration to it. He was satisfied that witness was a truthful witness even though he did not make his witness statement until some time after the incident. He was entitled to be so satisfied and nothing has been urged in this regard that occasions us any concern as to the propriety of his decision.

9. Finally it was argued that the trial judge failed to consider the inherent improbability in the evidence of PW1 and PW2 that they had without any collaboration been able to recall and to reduce into writing in almost identical sequence and words the events of 24th June. The suggestion was that there were so many similarities in their long and detailed statements that any judge, having given proper consideration thereto, must have had doubt, occasioned by the extreme likelihood that they had collaborated or co-operated in some way when making those statements, as to the truthfulness of their evidence.

10. The trial judge examined with care the submissions that were made to him in this regard. He stated that he read the statements themselves with care in the light of those submissions. These were, it must be said, matters very much for a trial judge fully seized of all of the circumstances of the trial who had seen and heard the witnesses. He said in the outcome, having considered all of the matters put before him and the contents of the statements:

"Throughout the trial, I have been able to observe the demeanours of PW1 and PW2, they both impressed me to be honest and truthful witnesses. I have no reservation to say that their evidence are reliable and I rely upon their evidence as the facts."

This was a finding made after careful consideration of matters which were very much in the province of the trial judge and it is not one with which we could properly interfere.

11. Nothing has been urged which would make us think that the convictions were either unsafe or unsatisfactory and the application for leave to appeal against those convictions must, therefore, be refused.

12. We turn then to the application to appeal against sentence.

13. The trial judge, as we have indicated, ordered that the defendant be detained in a training centre. It is the suggestion today of Mr. Matthews that a proper order, given the youth of the defendant and his background, would have been that he be placed on probation. The probation reports, and there were two of them, did not recommend probation. Given the material that is contained therein and in the report that came from the Correctional Services Department, we have no doubt whatsoever that the order that he be sent to a training centre was a proper one. He is clearly a young man who is in need of and will, we trust, benefit from detention in a training centre. Nothing has been argued that suggests that the trial judge was in any way wrong in coming to the conclusion that he did. The application for leave to appeal against sentence must also, therefore, be refused.

Representation:

Mr. J. Reading, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Jerome Matthews & Mr. Raymond Yu instructed by Messrs. Massie & Pickavant for the applicant.