The Queen v. Yau Yuen-ping

CACC000559/1984

Coram: Roberts, C.J., McMullin, V.P. & Kempster, J.A.

Date of Judgment: 21st March, 1985.

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JUDGMENT

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Roberts, C.J. -

1. The applicant, YAU Yuen-ping, was convicted before a District Judge on one charge of possession of a dangerous drug for the purpose of unlawful trafficking. It is alleged in the particulars of offence that on 7th July, 1984 at Kwai Chung he had in his possession 48.75 grammes of a mixture containing 13.44 grammes of salts of esters of morphine, for the purpose of unlawful trafficking.

2. The facts were very simple. A police party took up position, according to their evidence, about 10.15 on evening of 6th July in Block 6 of the Kwai Chung Estate. The Sergeant in charge of the party, No.16962, who was the first prosecution witness, positioned himself on the ground floor, rear the entrance to the block. Two other constables, who gave evidence, P.W.2 No. DC 2070, and P.W.3 No. DC 22242, stationed themselves on the eighth floor of the block, since apparently the police, according to the information which they received, expected that the defendant would make his way there.

3. Over three and a half hours later, at a few minutes before two o'clock on file following morning, the 7th, the defendant appeared on the ground floor of the block carrying a white plastic bag in his right hand. P.W.1 said that he recognized the defendant as his target and saw him enter the lift and press the button. He contacted P.W.3, who was waiting on the eighth floor, by police radio. He then went up the staircase himself to that floor.

4. When he arrived there, he saw the two police officers, P.W.2 and P.W.3, holding the defendant on the ground. He added that the white plastic bag was lying on the ground two or three inches from the defendant's right arm. When the bag was opened, inside it was a newspaper containing the five polythene bags. These were subsequently analysed and found to contain the quantity of dangerous drugs specified in the particulars of offence.

5. The defendant was arrested and taken to Kwai Chung Police Station. On his way there, according to one of the police witnesses, the defendant fell over and received abrasions, which were reported to the duty officer. He was taken to Queen Elizabeth Hospital and there examined by a doctor. He made a complaint to C.A.P.O. that he had been assaulted.

6. The defendant gave evidence at his trial. In substance he asserted that he was framed by the police officers concerned in his arrest. He explained that he had been arrested by two members of the same party on 15th May with regard to a pawn ticket and had been taken to Kwai Chung Police Station where P.W.1 and P.W.3 had assaulted him. He was taken to Princess Margaret Hospital in the early hours of the 16th and medically examined. On the same day he made a formal complaint to an officer from C.A.P.O.

7. About a week later, according to the defendant, he was contacted through his pager and told to go to Ho Chuk Restaurant. When he went there P.W. l and P.W.3 asked him to drop his complaint against C.A.P.O. or else P.W.1 would do something to him in the future.

8. On 6th July he received information about midnight through his paging station that C.A.P.O., to which he said he had given his paging number, wanted to see him at the apartment of his friend, Tsang, who lived on the eighth floor of Block 6, so that a statement could be taken from him. That was the reason, he said, why he went to Block 6.

9. When he got out of the lift on the eighth floor, his name was called and he was seized by the police officers who threw him to the ground. He denied ever having had possession of the plastic bag, which contained the dangerous drugs. He said that the first time he saw the drugs was after he had been arrested by the police officers.

10. Mr. Alderdice, who appeared on behalf of the applicant, put forward three main grounds on which he argued that this conviction should be regarded as unsafe.

11. Firstly, he pointed to the coincidence that the defendant had been arrested by two members of the same squad which, according to the defendant, had been responsible for beating him up a few weeks' before and had been subject to a complaint by him to C.A.P.O.

12. This, of course, was the core of the applicant's defence, which was put forward by him in evidence and argued vigorously on his behalf by counsel who represented him at the trial.

13. Necessarily, this issue involve the credibility of the two police officers concerned and that of the defendant himself. There was a clear finding by the judge, in his reasons for verdict, that the evidence of the police officers was reliable in all material respects. On the other hand, he found than the defendant was a deliberately dishonest witness.

14. In assessing the credibility of the witnesses, the judge gave some weight to the fact that the police officers, according to their evidence, were lying in wait for three and a half hours for the defendant to arrive, commenting that, had they lured the applicant to the block of flats with the intention of planting a bag of dangerous drugs upon him, they would hardly have stationed themselves there so far ahead of the time when he could be expected to have arrived.

15. Secondly, it was argued that there was, in the evidence of the three police witnesses who were concerned with the arrest of the defendant on the eighth floor, a degree of inconsistency, in that two of them say that they saw the plastic bag close to the right arm of the defendant on the ground, whereas one of them said he saw it near his left leg.

16. This is the kind of discrepancy which gives rise to two alternative arguments; either that the minor discrepancies of this nature show that the witnesses concerned disagreed and were therefore dishonest and unreliable, or that such discrepancies show that the witnesses did not drill themselves into a common story before giving evidence and so are more likely to be honest.

17. The judge is well aware of the discrepancies. In his reasons for verdict, he noted that there were discrepancies in the evidence of the prosecution witnesses, for example, the position of the plastic bag containing the drugs in relation to where the defendant was lying on the floor after he had been intercepted, and as to who arrested the defendant.

"However, their evidence was, as I have already said, reliable in all material respects."

18. The judge therefore considered these discrepancies but was satisfied that they did not affect his view as to the reliability of the officers concerned.

19. The third argument, which was advanced on the applicant's behalf, related to the evidence about the defendant's pager number. As we have mentioned, the applicant alleged that he had been summoned by the pager to Block 6 by the police, an allegation which was firmly denied by the Sergeant.

20. There are passages in the transcript which could be said to show a shifting of ground by the Sergeant when he was questioned as to whether or not he could have got in touch with the defendant through the paging system if he had wished to do so. His earlier answers, to questions put by the defendant's counsel, suggest that he only had the paging company's number. After further questioning, however, he admitted that he could have contacted the defendant if he had wanted to do so.

21. When asked why he did not say that when he was earlier questioned about the pager he said "I thought you were asking if I had the means of calling him and I said 'No'".

22. This passage was clearly in the judge's mind. He comments in his reasons for verdict that "there was a confused account by P.W.1 about the defendant's paging number" and about whether P.W.1 knew how to contact the defendant through the defendant's paging machine.

23. The judge does not make a specific finding as to what he considers the effect of that passage in the transcript to have been. However, what he does do shortly afterwards is to reach the conclusion that the defendant was a deliberately dishonest witness and that P.W.1 was reliable in all material respects.

24. Thus the trial judge has carefully examined the various factors which have been urged upon us as arguing for a view that the conviction was unsafe. Essentially, as we have said, he considered them and he reached findings on the credibility of the principal witnesses.

25. There are no grounds on which it would be proper for us to substitute our view of the evidence, since there is no fault that we can see in the manner in which the judge approached it. He was entitled to reach the conclusions which he did.

26. Despite, therefore, Mr. Alderdice's persuasive argument on the applicant's behalf, we have no doubt that this application for leave to appeal against conviction must be dismissed.

Representation:

Mr. G. Alderdice (D.L.A.) for Appellant

Mr. C.G. Jackson, Senior Crown Counsel, for Respondent.