HKSAR v. Lo Bing Hong

CACC 391/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 391 OF 2003

(ON APPEAL FROM dcCc 399 of 2003)

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BETWEEN

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Date of Hearing:  16 February 2005

Date of Judgment:  7 March 2005

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 J U D G M E N T

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Tang JA (giving the judgment of the Court):

1.The applicant was convicted after trial by HH Judge Chua on 18 August 2003 of trafficking in a dangerous drug and was sentenced to five years’ imprisonment. 

2.The prosecution’s case was straightforward.  PW1, PC52197, who was in uniform, and PW2, PC1309, in plain clothes, were on foot patrol on 4 November 2002 in Yaumatei.  At 22:39 hours as they turned into Tak Cheong Lane from Tak Cheong Street, they saw two men.  Those two men on seeing them turned and walked away.  PW1 stopped the applicant.  PW2 stopped the other man who was later identified as Chan Chung Kwong (Chan). 

3.PW1 said that he saw the applicant had dropped something on the ground which he picked up.  It was a Hilton brand cigarette packet and it was sealed with sellotape on the topflat.  He said, he opened the cigarette packet in the presence of the applicant.  Inside there were three transparent plastic bags, two of the same size and one smaller.  Inside each of the larger bags, there were twenty packets and the smaller bag, ten packets.  Those packets contained, in total, 13.2 grammes of a mixture containing 11.3 grammes of heroin hydrochloride.  When questioned, the applicant denied that the packet belonged to him.

4.No drug was found on Chan and after checking that he was not a wanted person, PW2 allowed Chan to go. 

5.The defence was equally straightforward.  The applicant was 69 years old and he was a drug addict.  He went to Tak Cheong Lane to buy drugs.  There he saw Chan and agreed to buy one small packet of drugs from him for $160.  He gave Chan $500 and was given $340 change.  It seems, and the evidence is not clear, that before he was given any drugs, the police arrived.  Both he and Chan were arrested.  He said that PW1 took Chan to about two shop spaces away and talked there for few minutes and that after PW1 and Chan had finished talking, PW1 said, “Ask the sergeant to come over”.  The sergeant came and had a conversation with them as well.  He also claimed that PW1 said to him, “Since the two of you are not being co-operative, the two of you will be taken to the police station”.  However, PW1 then allowed Chan to go.  He said when he saw the sergeant again in the police station, he said, “How come this is like this?  You said that two persons would be arrested.  Now, only I have been arrested and the other person has been released”.  He said the sergeant said to him, “if the things are not yours, they will have to be taken for examination and fingerprints be examined.  If they are not yours, you don’t have to be afraid”.

6.In this kind of case, much would depend on the judge’s assessment of the credibility and reliability of the applicant and the two police officers.  She understood the defence to be that “the drug dealer had persuaded the police officer to let him go and make the defendant the fall guy” and that “It is likely that the defendant is suggesting the drug dealer hand this (the drugs) to PW1 and bribed him to let him go”.

7.The learned judge rejected the defence as fictitious.  She said, “I do not believe a word of what he said”.

8.She gave four reasons for that conclusion. 

9.At paragraph 12 of her reasons, she said:

“Mr Fung for the defendant never mentioned the sergeant in cross-examination of the two officers.  I expect this is a recent embellishment to his made-up story.”

10.By recent embellishment, we believe she meant something made up by the applicant whilst giving evidence.  It is true that neither PW1 nor PW2 were cross-examined about the sergeant.  But Mr Kelly, who appeared for the prosecution, did not cross-examine the applicant about the sergeant either.  Indeed it is common ground that there was a sergeant at the scene.  It was referred to by PW2 in paragraph 4 of his witness statement.  It is unsatisfactory that the learned judge used this as a reason for disbelieving the defendant when this was not a point which had been taken on behalf of the prosecution.  If she was going to take the point against the applicant, she should, at least, have given the defence an opportunity to explain.  If that had been done, she would have been told by Mr Fung, who appeared for the applicant below, that it was not a recent embellishment.

11.The other reasons are to be found in paragraph 11 of her reasons:

“The defendant’s defence and allegations are rejected as fictitious.  I do not believe a word of what he said.  An entrenched addict will not be able to control his addiction to a once a week dose.  I am sure he knew where to find drugs on Hong Kong Island, and I reject his explanation for being in Yau Ma Tei.  I disbelieve the reason he gave for being in possession of $2,000.”

12.The fact that the applicant had $2,000 on him was not something which the prosecution relied on.  It was not referred to in the opening.  No evidence was given by either PW1 or PW2 in respect of this.  It was first mentioned by the defendant in chief.  He was not cross-examined about it by Mr Kelly.  The judge did ask the defendant some questions at the end of his evidence when he explained why he had about $2,000 on him at the time.  It is not clear what significance the judge attached to the $2,000 nor why she found it sufficiently important to be given as a reason for disbelieving the applicant.  However, when she sentenced the applicant on the same day, she said:

“The defendant was arrested in Yau Ma Tei after he had dropped a packet which contained 50 small packets of heroin.  The flat-topped cigarette packet was sellotaped.  He had some $2,000 in cash on him.  I infer from this evidence the defendant was not intending to sell the drug packet by small packet, but was acting as a courier.”

13.It seems that she regarded this $2,000 as significant because she felt able to infer from it that he was acting as a courier.  It is not very clear why she felt able so to infer.  It may be that she thought that $2,000 was given to the applicant as his reward for carrying the drugs. 

14.Depending on the circumstances, the presence of the money could be an indication of an on-going trade in drugs of which the presence of the drugs at the time of arrest was capable of being construed as possession with intent to supply.  But that was not how the judge regarded the $2,000.  Rather, it seems, that she inferred that the $2,000 was the reward to the applicant for carrying the drugs.

15.There was no evidence to that effect at all.  That was not the prosecution case.  It was never put to the applicant.  Nor do we believe that to be a compelling inference.  Again, if she was minded to regard the presence of the money as significant, she should have given Mr Fung an opportunity to deal with it.

16.We regret to say at least two out of the four reasons given by the judge cannot be supported.

17.That being the case, we believe the verdict to be unsafe or unsatisfactory.  We would grant leave to appeal and allow the appeal. 

18.We should mention that the appellant also sought leave to adduce fresh evidence under sections 83V(1) and (2) of the Criminal Procedure Ordinance.  Having regard to our decision, the application has become academic.

19.Moreover, having regard to the possibility of a re-trial, we believe we should say nothing about the fresh evidence.

20.The appeal is allowed.  The appellant is to be remanded in custody pending a decision on re-trial.  A date for the argument on re-trial should be fixed forthwith.

Mr Tam Sze Lok, SGC for the Director of Public Prosecutions, for the Respondent.

Mr Andrew C.H.Y. Leung, instructed by Messrs Kitty So & Tong, for the Applicant.