The Queen v. Chung Chu Choi

IN THE COURT OF APPEAL

1986 No. 85
(Criminal)

BETWEEN

THE QUEEN

And

CHUNG Chu-choi

Coram: Hon. Li, V.-P., Silke, J.A. & Power, J

Date of Hearing: 5^th August 1986

Date of Judgment: 5^th August 1986

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Judgment

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Li, V.-P.:

1. The applicant was convicted of two charges, namely incitement to traffic in dangerous drugs, contrary to Common Law, and Criminal intimidation, contrary to section 24 of the Crimes Ordinance. These two charges arose out of a series of incidents that occurred between 27^th and 28^th June 1985. It was alleged that the applicant on 27^th June incited one Chan Chun-ho to traffic in dangerous drugs. On 28^th June 1985 he threatened one Yim Yu-fai with an illegal act, namely to fabricate evidence against Yim with intent to alarm the said Yim Yu-fai. The prosecution evidence can be summarised as follows.

2. In the very early hours of 27^th June last year the applicant arrested one Chan Chun-ho, the victim of the first charge, for possession of dangerous drugs for the purposes of unlawful trafficking. Chan was brought into the police station. Later he was taken to his home for a search and then brought back to the report room of the police station. After that Chan was put in a cell.

3. It was alleged that while he was detained there, the applicant went to solicit and to incite Chan to supply him with drugs. This was done with a promise that the applicant would see to it that the charge of possession of dangerous drugs for the purpose of unlawful trafficking was reduced to one of simple possession, that the charge of resisting of arrest against Chan would be dropped and that Chan would be granted bail later in the morning when Chan appeared in court.

4. As the event turned out the original charge of trafficking of possession for the purpose of unlawful trafficking was maintained. The charge of resisting arrest was not dropped but Chan was granted bail. There had been previous arrangement as to the duty route of the applicant that evening so that drugs could be supplied to him by Chan.

5. In the evening of 27^th June the applicant was on patrol duty with a police constable no. 45128 (PW3). They were patrolling around the Tze Wan Shan area. At one stage the applicant told PW3 to wait for a while because he had an appointment with one of his informers. Later on the applicant saw Chan and signalled Chan to follow him. By that time Chan had equipped himself with a small package of dangerous drugs.

6. The applicant then led PW3 to a bus stop. They boarded a bus. The applicant told the bus driver to wait for a while because there was another person coming. Chan also boarded the bus. It was the applicant who suggested to PW3 that they go to the upper deck where they seated themselves separately, near the aisle – one on each side of the bus. Chan sat behind constable 45128, PW3. Applicant said: Has the matter been fixed up. Thereupon Chan placed a small packet on his cap. According to PW3 Chan placed the packet in the applicant’s service cap. According to Chan he placed it in the applicant’s hand. When the packet had been passed on the applicant signalled Chan to leave the bus. Chan did so. The two constables continued the journey. Upon a next stop they alighted from the bus. Before they did there was an episode of the applicant’s asking PW3 for tissue papers which he then used to wrap the drugs, and threw them out of the bus to be retrieved later on. But that is of no significance for the purpose of this appeal.

7. Having had the drugs in his possession the applicant continued to patrol with PW3. In the early hours of the morning on the 28^th they saw Yim Yu-fai (PW5) in one of a blocks. The applicant called on Yim Yu-fai asking to inspect his identity card. Yim took out his wallet. The applicant put the small packet in his wallet and returned the wallet to him. Then he took Yim into a public toilet. In that toilet, as witnessed by PW3, he asked Yim to give information as to the other drug traffickers. Upon Yim’s refusal he threatened Yim that he would frame him. He then asked for Yim to produce the wallet for inspection again. From the wallet he took out the packet that he put in earlier, and said that if he could frame him then he could frame him in the future. He could put drugs in his home if he did not assist. Upon this threat Yim agreed to oblige him. The drugs were taken back from Yim’s wallet.

8. At the close of the prosecution case the applicant elected not to give evidence but called three witnesses. The first defence witness another police constable, gave evidence that on a previous occasion qwhen a suspect was arrested by the applicant and himself a report was made of the arrest. PW3 was also on patrol but in a different area. PW3 was very upset that his name was not put down as one of the arresting officers. The insinuation was that PW3 had a grudge, a small one at that, against the applicant.

9. The second defence witness, also a constable, referred to what happened in the small hours on the morning of the 27^th June when Chan was detained in no. 3 cell. He saw through a glass panel that PW3 was talking to Chan. There no evidence as to the nature of the conversation. According to PW3 Chan asked him when he could be granted bail, and PW3 was concerned. There was the insinuation that there could have been an opportunity on the part of PW3 who was then on cell duty to speak to Chan that he was the real culprit by suggesting to Chan the supply of drugs.

10. The third defence witness was another police constable who gave evidence that he was one of another group of police officers in the vicinity outside one of the blocks in Tze Wan Shan where the inspection of the identity card belonging to Yim took place. He said it was PW3 who was talking to Yim. The applicant was some 6 feet away behind them writing something. This evidence was a suggestion that it could have been PW3 who was threatening Yim. This contradicted the evidence of PW3 that it was the applicant who inspected Yim’s wallet.

11. The judge having heard all the evidence came to the conclusion that he could rely on the evidence of Chan and PW3 and he rejected the evidence adduced by the defence. He convicted the applicant.

12. Grounds of appeal have been filed. The first two grounds criticise the judge for having treated evidence which was non corroborative as corroborative evidence and having reversed the process of considering accomplice evidence.

13. In his Reasons for Verdict the judge said at p.4:

Both PW1 – Chan and PW3 were subjected to intensive cross-examination but were not shaken and maintained what they had told the Court in chief.

Then the judge went on to talk of corroboration of the evidence of PW1 – Chan who supplied dangerous drugs to the accused. Treating Chan, quite properly, as an accomplice. He went on to say:

That corroboration was there in abundance. There was no doubt that he had been arrested by the accused; had been in the Report Room area at the material time when the bargain between him and the accused was struck; that he had arranged to meet the accused on the evening of the 27^th June in Tze Wan Shan Estate; had boarded the bus and on that bus handed the accused a packet containing a granular substance which according to PW1 was a dangerous drug. PW2 – the bus driver and PW3’s evidence provides corroboration.

14. The judge did say that both PW1 and PW3 were subjected to the intensive cross-examination and were not shaken. This can only be interpreted as the judge finding the evidence of Chan and PW3 reliable because later on he said:

I realised it would be dangerous to convict the accused on the uncorroborated evidence of PW1 but as I have already said, his evidence was very substantially corroborated and notwithstanding such corroboration I found PW1 to be a truthful witness and I believed what he had told this Court.

We understand the word ‘notwithstanding’ as meaning that even without corroboration he would have convicted the applicant because he found PW1 – Chan a truthful witness. This coupled with the earlier remark it cannot be said that the judge looked for corroboration first so as to support his finding that PW1 was a reliable witness. PW3’s evidence required no corroboration.

15. As to evidence of corroboration, the fact that Chan was arrested by the applicant was never in dispute. That he had been in the report room at the material time again was not disputed. The only dispute was that there was no corroborative evidence as to the bargain. But one must look at the subsequent events to draw the inference. It was the evidence of PW3 that the applicant told him he was waiting for an informer in evening of the 27^th. Secondly, there was the evidence the two of them boarding the bus, and it was the applicant who asked the driver to wait because there would be another person coming. Thirdly, there was evidence that Chan supplied the applicant with drugs on the top of the bus. It would be against common sense to say that without incitement Chan took the initiative to supply drugs to the constable. The alternative would be that PW3 and Chan conspired together to frame the applicant. That would mean Yim Yu-fai had also joined in to commit perjury by supply evidence of subsequent events. The judge quite properly said that PW3’s evidence provided corroboration. There is nothing in the grounds one and two.

16. The judge did not rely entirely on PW2’s evidence as the only corroboration. He said it was PW2 and PW3 the evidence of both which provided the corroboration because it was PW2 who said there were two uniform police officers who boarded the bus and one of them asked him to wait and PW3 said it was the applicant who asked.

17. Another ground was that the judge erred to find PW1 a truthful witness. A list of reasons had been advanced to show how the judge was wrong. These are basically jury questions. The judge as a judge of fact, having seen and viewed the witnesses, was entitled to come to his conclusion.

18. Another complaint is that the judge failed to evaluate the three defence witnesses. In his reason for verdict he said the accused elected not to give evidence but called three short witnesses in an attempt to support the suggestion which were made during the cross-examination of PW3 that it was PW3 who was really the guilty party and not the accused. He further said:

I had the benefit of hearing the evidence and observing the witnesses.

This indicates that he had heard all the evidence, considered all the evidence and observed all the witnesses. We cannot say that the judge did not evaluate the evidence of the defence witnesses.

19. There are also complaints about the judge failed to consider the discrepancies in evidence as between PW1 – Chan and PW3. These were referred to the judge by counsel in counsel’s closing address as were the differences as between Yim and PW3. It cannot be said with justification that the judge had not considered them. On the discrepancies as between Yim and PW3 the judge said:

…… of course there were a number of discrepancies between what he told the court and what PW5 told the court concerning the second charge; for example where PW5 actually was when first approached by the accused and PW3 that night, where the search and conversation between the accused and PW5 took place. Such discrepancies are only to be expected when one takes into account the lapse of time between the offence and the trial, but none of those discrepancies was of such a nature that the judge had considered it as to lead me to believe that PW3 and PW5 ahd told the court other than the truth.

20. Criticism was made that the judge never set out discrepancies and evaluate each of them. In our opinion the judge, giving his reason for verdict, is not obliged to do so. Counsel contends that the judge must give reasons, indicating that he sufficiently considered the evidence and all the points as raised by the defence.

21. We can do no better than refer to the case of Chan King Man v. The Queen(1), a recent decision of this Court. In that case a number of the previous cases were considered. The learned Chief Justice cited the dictim of Blair-kerr, J in the case of R v R.E. Low(2). I shall not repeat it since that passage is set out at p.113 of Chan King Man(1). The Chief Justice said (at p.114):

We were referred also to Law Keung v R(3), and appeal from the decision of a Magistrate to the High Court in which the then Chief Justice expressed himself, obiter, on the obligation of a district judge.

Then he set out the extract of the judgment and went on:

This passage imposes a heavier, and different, burden on a District Judge than that suggested by the Full court in LAW Tin-cheung(4) or LOW(2). LAW Tin-cheung and LOW(2) should, in our view, be followed and not LAW Keung(3).

The judgment which was the subject of the appeal before us, covered twelve pages of closely spaced typescript. The judge went further than the section requires him to do. A short statement of Reasons for Verdict seldom needs to be as extensive as this .

22. We are not suggesting that a district judge should give very scanty reason for verdict and without comment. The present case was a simple one. The evidence was straight forward if one applied one’s common sense. The judge in a 4 ½ page judgment had given his reasons, after setting out the gist of evidence in total. He had considered every point. The Ordinance does not require him to set out every single point of the evidence or every single discrepancy. We are satisfied that he has given his reasons and we cannot find fault with his process of reasoning. For these reasons the application for leave to appeal against conviction is refused.

23. We have to consider now the application for leave to appeal against sentence. In this respect we do feel that the five years overall sentence is too high. Both offences were directed to one end, albeit by two separate illegal acts. In imposing sentence the learned trial judge over-emphasised the separateness of the two offences. In the circumstances we feel that an overall sentence of four years is appropriate. For this reason we grant leave to appeal against sentence, treat the application as the appeal proper. The appeal is allowed to the extent the sentence of three years in respect of the first charge be reduced to two and to be served consecutively with the sentences of two years in respect of the second charge, making a total of four years in all.

Mr Sedgwick Q.C. & Mr. M.K. Wong (Michael O’Cock & Partners) for Appellant

Mr T. Jenkin- Jones (Crown Prosecutor) for Respondent

(1) (1980) HKLR 105

(2) (1961) HKLR 13

(3) Crim. App. 625/72

(4) (1970) HKLR 105