HKSAR v. Ng Chuk Kwan and Another

CACC000400/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 400
(Criminal)

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Coram: Hon Nazareth Atg CJHC, Mayo and Stuart Moore JJA in Court

Date of Hearing: 28 January 1999

Date of Judgment: 28 January 1999

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The two applicants were tried and convicted by His Honour Judge Davies in the District Court on two counts of trafficking in dangerous drugs contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134).

2. The particulars of the first charge were that the two on or about 5 June 1997 outside Lung Fung Cafe, Kwai Chung Estate, unlawfully trafficked in a dangerous drug, namely 0.51 grammes of a mixture containing 0.46 grammes of heroin hydrochloride.

3. The particulars of the second offence were at the same place on or about 12 June they unlawfully trafficked in a dangerous drug namely 0.44 grammes of a mixture containing 0.35 grammes of heroin hydrochloride.

4. Both were sentenced to two years on the first count and 12 months on the second count, although on the second count, D2's sentence was made consecutive. We are not concerned with the sentences because both applicants now seek to appeal only against conviction.

5. The facts can be shortly stated. In May and June 1997 the police mounted an undercover operation in the Kwai Chung Estate, Kowloon to attract drug traffickers because the police believed they were operating in that area. On 5 June 1997, DPC 14456 went to an open area in the Kwai Chung Estate to undertake undercover activities. He knew that other police officers would be in the vicinity observing his movements and the movements of anyone who might approach him. If he was successful in purchasing drugs from any person, he was to place his right hand in his trousers pocket as a signal to those observing that a purchase had taken place. He was then to make his way back to the police station.

6. While he was wandering around and had got to the vicinity of Lung Fung Cafe, he was approached by the 1st applicant who asked in a low voice whether he was going to take anything. PW1 realised he was being offered drugs and answered in the affirmative. D1 asked him "large" or "small". PW1 responded "large". D1 then told D2 who was sitting nearby to go and collect a large one. D2 went off and returned amount a minute later with a packet. He asked PW1 for $200. He was given two $100 notes by PW1 and he gave PW1 a small plastic packet. PW1 placed the packet in his right trouser pocket and kept his right hand in his pocket as a signal to his colleagues that he had made a successful purchase.

7. PW1 then went back to the police station. He handed over the small plastic packet to Detective Sergeant 11254 (PW4) who later gave evidence. PW4 placed it in a sealed envelope. Later the contents were established to be the amounts of drug that were specified in the particulars of the first charge.

8. At the scene the actions of the two applicants and PW1 were observed by police officers who were watching. After PW1 had given the pre-arranged signal and had left the area, two of the officers left a car which they were in and approached the two persons to have a closer look.

9. On 12 June 1997, a similar incident took place. PW1 again went to the front of Lung Fung Cafe. He was again approached by D1 who made a similar offer of drugs. D2 was told to get a large one. D1 asked PW1 for $200 which PW1 gave him. D2 returned with a plastic packet which PW1 put in his right trouser pocket. PW1 left the area and went to the police station where he handed the packet over to PW4 who put it in a sealed envelope. Later the contents were shown to contain the amounts of drug specified in the second charge.

10. This second incident was also watched by other police officers at the scene.

11. After the police drug operation in Kwai Chung had been concluded, as the judge stated in his reasons for verdict, D1 was arrested on 17 June 1997 and D2 arrested on 23 August 1997. They were subsequently identified by PW1 at identification parades.

12. The applicants elected not to give evidence in their own defence at the trial. D1 called one witness and her evidence suggested that the officers watching might have had their view obscured.

13. The judge addressed the evidence in his short judgment. He said at the end of his judgment that he considered all of counsel's submissions and criticisms and he was satisfied that there is no merit in any of those criticisms. He rightly concluded:

"At the end of the day the only real issue goes to PW1's credibility. The question to be asked is whether this is a case in which the evidence is fabricated. Having considered the evidence carefully ,I am satisfied beyond reasonable doubt that the answer to that question is no."

14. Before us, Mr J.G. Fenton, who appears for the two applicants before us but who did not appear below, takes one substantive point. He complains that the judge failed adequately or at all to consider four matters and that had he done so, they would have caused a lurking doubt.

15. The first point concerns PW4 recording on the envelopes in which he placed the drugs he received from PW1, the words "seizing officer" referring to himself. He submits that plainly on the evidence of PW1, he was the seizing officer and PW4's record is a serious discrepancy. However PW1's evidence is perfectly clear; he obtained the drugs from the applicant. He was not shaken in his evidence that he took them to the police station and gave them to PW4. PW4 was equally clear that he received these drugs from PW1. Mr Fenton's point can be seen simply to be one that turns on the use of the words "seizing officer". Counsel below, the applicants being separately represented, did not raise this point. We have to say that there is no substance in it.

16. Allied to the same point is that the envelope was not signed by either officer, i.e. PW1 or PW4. This, it is said, is likewise a serious deficiency. We are not aware of whether there are any requirements for anything of that sort but certainly it would have been preferable if some notation or signature had been made. But that is the extent of it.

17. The third point is that when PW1 signalled his colleagues, no arrest was made. Mr Fenton eloquently asks why were these two suspects allowed to go free and continue to commit a second offence and not be arrested even on the second occasion.

18. His fourth point is why the "marked notes" that were used on both occasions did not immediately precipitate an arrest when they were handed over in payment. A clue to this would seem to be the observation that the judge made and which we have already mentioned which was that the arrests were effected after the conclusion of the entire operation. It is not too difficult to see that had the police arrested the applicants at the scene, it would immediately have become known that the police were active in the vicinity.

19. In pressing his submissions on these four matters, Mr Fenton has sought to rely upon another case in which Nguyen J found a lurking doubt upon facts which were not only very similar but involved the same group of officers in the same area.

20. We do not find ourselves greatly assisted by comparison with other cases even where the facts are similar. Likewise, Mr Fenton sought to rely the judgment of Wong J in another case where he stated that vital discrepancies should be addressed and explained; the discrepancies here could not be said to be vital.

21. We observe that these points upon which Mr Fenton relies were not raised in counsel's submissions below in any specific way. As the judge rightly observed at the end of his judgment the real issue was the credibility of PW1, and the question had to be asked whether this was a case in which evidence was fabricated. At the end of the day he was satisfied with the prosecution's evidence and that it established all the elements of each offence. That conclusion has not been faulted and we entertain no lurking doubt.

22. The applications are refused.

Representation:

Mr Albert Wong SGC (DPP) for the Respondent

Mr J.G. Fenton (DLA) for the Applicants