The Queen v. Yau Tak for

HCMA000703/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 703 OF 1985

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BETWEEN

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Coram: Hon. Jones, J. in Court

Date of hearing: 28th August 1985

Date of delivery of judgment: 28th August 1985

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JUDGMENT

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1. This is an appeal by the appellant against his conviction by a magistrate on the 6th June 1985 for trafficking in a dangerous drug, contrary to Section 4(1)(a) of the Dangerous Drugs Ordinance, Cap. 134. The appellant was sentenced to detention in a Training Centre. There is no appeal against sentence.

2. Another defendant at the trial before the magistrate who was the 1st defendant was charged with 'possession of a dangerous drug for the purpose of unlawful trafficking'. The 1st defendant admitted possession, but was convicted of the offence for which he was charged.

3. Evidence for the prosecution was given by two police officers who were keeping observation on the 6th April 1985 at about 8 p. m. on the roof top of a four-storey building in San Cheung Street. PW1 said that he saw the 1st defendant walking behind the appellant towards Lung Sum Avenue along San Hong Street. When they reached No. 80, he observed the appellant give something to the 1st defendant after which the 1st defendant handed a red note to the appellant. After the appellant counted the money that he had received he and the 1st defendant separated. The 1st defendant was arrested a short while later and he was found to have in his possession one packet of dangerous drugs. The 1st defendant denied that he had obtained the drugs from the appellant. PW2 corroborated the evidence of PW1. He saw the appellant hand over a packet of "white stuff" and that the 1st defendant took it into his possession. He then saw the 1st defendant take out some red notes and hand them over to the appellant. The appellant gave evidence that he was outside a cafe when the 1st defendant asked him if he had seen Ah Kwan to which he replied that he had not and then went back into the cafe. However, it occurred to him that Ah Kwan could be contacted by pager so he wrote down the number of the pager on a piece of paper. He went after the 1st defendant, gave the paper to him and told him that he could page the number. The appellant then went back into the cafe.

4. One ground of appeal has been advanced by Mr. Westbrook who appeared for the appellant which is as follows:-

"That under all the conditions prevailing at the material time, it was impossible for the prosecution witnesses to have seen all that they claimed to have seen that occurred between the 1st defendant and the appellant, so that their credibility was thereby impugned as to render the conviction unsafe and unsatisfactory."

5. It has been conceded by Mr. Chiu who appeared for the Crown that the police officers particularly PW1 did gild the lily by exaggerating some of their testimony. However, at the end of the day the question to be decided is whether the police officers observed the illegal transaction take place. The 1st defendant and the appellant were on their own admission seen together. The appellant admitted that he handed a piece of paper to the 1st defendant whilst the 1st defendant was found to have in his possession a packet containing the dangerous drug. Having accepted the evidence given by the police officers and rejected the appellant's explanation a conviction was the inevitable result. The evidence was overwhelming. Accordingly the appeal against conviction will be dismissed.

Representation:

Mr. S. Westbrook (Kwan & Kwan) for Appellant

Mr. S. Chiu (Legal Department) for Respondent