The Queen v. Tam Wing Hung

CACC000511/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Silke, V.-P., Parker, J.A. & Penlington, J.

Date of Hearing: 12th January 1988

Date of Judgment: 2nd February 1988

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J U D G M E N T

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Silke, V.-P.:

1. Tam Wing Hung was originally charged - as the 2nd named accused - with one Shum Koon Lam on a Charge Sheet which contained individual counts against each of them of possession of dangerous for the purpose of unlawful trafficking. Separate trials having been ordered, he appeared for trial before His Honour Judge Wilson and was convicted. He now seeks leave to appeal against that conviction.

2. Particulars of the offence were that on 10th June 1987, on board a private car registration No. DR1529, he had in his possession a dangerous drug, namely, 462.82 grammes of a mixture containing 43.87 grammes of salts of esters of morphine; this for the purpose of unlawful trafficking.

3. On 10th June, Customs Officers on duty were keeping surveillance on the car DR1529 on the first floor of the car park of Wang Kwong Building Ngau Tau Kok Road. At 9:40 a.m., two men approached that car, one of them the Applicant who was dressed in a blue shirt and who not into the driver's seat. The car drove off. When it reached the round level, it was stopped by some of the Customs Officers. They revealed their identity. The Applicant got out of the driver's seat and was searched. Nothing was found upon him. The car was then searched and under the front passenger seat was found a white plastic bag with the name "Dodwell" upon it. The searching officer described it as containing seven "tubes" and one newspaper wrapped packet. When asked who owned the bag, the Applicant made no reply.

4. There was produced in Court eight packets, six of those packets contained ten smaller packets, one of them had nine smaller packets and one was a single packet. The newspaper wrappings were also produced, they having been taken off the drugs after the party had returned to a police station.

5. There was no issue at trial that the Applicant had been properly identified that the bag was found under the seat and that the bag contained drugs,

6. I would interpolate here that the passenger in the car at the time it was stopped by the Customs Officers, one Chiu, was originally charged with a similar offence Nut was later released, no evidence being offered against him.

7. The newspaper wrappings marked "1A" to "8A" were taken for finger print testing. A finger print was found on the inside of sellotape wrappings which had bound each packet together. This on one packet only.

8. Two issues, on the chain of evidence and the method of obtaining evidence, arose at trial. The first was: Were the drugs which are produced in Court the actual drugs which were found or were they drugs which related to another case which had occurred on the same day? The second was: Was the expert, who gave evidence upon the similarity of the print found on the sellotape as compared with the acknowledged finger print of the Applicant, sufficiently careful in his method of comparison; further, did the scientific evidence which he produced to the Court amount to the proper "necessary scientific criteria" for the judge to test the accuracy of conclusions of the expert so as to enable the judge to form his own judgment.

9. Dealing, with the first point. There is no doubt that this case was slovenly handled by those involved. The evidence of the two Customes officers was by no means clear as to who did what in relation to the drugs found both in this case and in the similar case. Reference numbers 165 and 163 seemed to have been used indiscriminately. This unfortunate manner of handling the evidence led, as the judge said, to an attack at trial on the chain of evidence and also to submissions made to us on this appeal.

10. The trial judge resolved the difficulty by referring to that which he described as "direct links" in the chain of exhibits which satisfied him that the drugs which were before him were in fact the drugs seized from the car. The first of those links was the signature of the Applicant on exhibit labels which were placed upon the drugs and which had 'the reference number "165" written on them. The Government Chemist Certificate also made reference to "165". 165 was the reference number of this particular case.

11. Mr. Hatton, who appeared for the Applicant both here and below, has criticised this finding for he says there was no evidence to show that when the Applicant signed the labels anything, had been written upon them. Therefore, the fact of the signature appearing on the labels together with the number 165 had little, if any, significance,

12. The second link was the actual number of the packets of drugs found. It was the evidence of the searching officer that he opened and counted the packets of drugs at the scene of arrest. He spoke of seven tubes and one packet having been found and of taking the paper off them at the police station. He described the numbers of small packets which I have already enumerated and which were produced as being contained in the seven tubes, These totalled 70. The Chemist Certificate also referred to 70 packets and in the same distribution as was evidenced by the searching officer.

13. The trial judge was fully aware, and agreed with, counsel, that the chain of evidence was a "little confused". He was, however, satisfied that a chain had been established and that the drugs in Court were those found in the car. Despite the criticisms of Mr. Hatton as to this finding, we are satisfied that the trial Judge having properly directed himself, was perfectly entitled to come to the conclusions he did and we are not prepared to disturb those finding.

14. Knowledge was the real issue in this case. The Applicant denied knowing the hag was present or the nature of its contents. He said that he had hired the car, lent it to the passenger Chiu on the night of 9th June and had met him for tea on the morning of the 10th in order to get the car back. Having met Chiu he went with him to collect the car and to drive him home. It was then that he was arrested. The finger print, and quite rightly, clearly played a major role when the judge came to consider whether the presumptions which had been raised had been, on the balance that rests upon a defendant, rebutted.

15. The background to the print was this. On 10th June, in the afternoon, a police photographer had received the piece of newspaper with sellotape attached from a police constable into whose custody it had been placed. He described himself as "photographing it and processing, it". The photograph to which he referred was exhibited as "Exhibit P7". He did not remove the adhesive tape from the paper.

16. The next step was that on the following day, the 11th, Inspector Yuen Hok Pan was given the normal Finger Print Form which contained the prints of the Applicant and also the photograph Exhibit P7. He compared the photograph with the prints. It was his evidence that the print on the photograph was identical with the second right finger on the Finger Print Form mearing twelve hatching characteristics. No enlargement was produced.

17. In Court, using a magnifying glass, the Inspector drew a sketch exhibited as "Exhibit P9" indicating on a much larger scale than appears on the photograph the twelve characteristics to which he had made reference. He accepted he had never seen the original piece of sellotape containing the print but said that it was better to compare the Finger Print Form with the photograph. He thought that the print was on the sticky side of the sellotape, though not having examined it he could not he sure of this, and accepted that, if so, the photograph which he examined may have been a reverse image. On these last two points there was no evidence from the photographer.

18. The judge accepted that it was factually a reverse image after his examination of photograph P7 and noting; what he described as the reversed newsprint characters which formed a background to the sellotape with the print on it. He accepted it would have been better had the expert seen the original print and come to his conclusions as to the apparent reversal from a direct examination of it. He accepted that the approach of the police to the matter was too casual and as he said to he "deprecated". Then he went on:

"However despite this valid criticism I was left in no reasonable doubt that the fingerprint on the sellotape on the wrapping of one of the drug packets was in fact that of the Accused."

19. The photograph p7 is approximately 3½" × 2½" in size. It is not particularly clear. Careful examination does show a print upon the piece of sellotape which centers the photograph and against the background of news print.

20. The non-production at trial of the normal enlargement which would highlight the original twelve characteristics was a matter of comment recently in The Queen v. Chan Kam Tak and Ng Kin Wai⁽1) There the jury had a very small photograph containing an even smaller representation of what was said to be a palm print upon a paper bag without any identification of the twelve characteristics. The jury had also before it the paper bas itself with the portion where the palm print was said to have been found marked upon it. That was of no assistance. From the area marked on that bag it was clear that only a small portion of the palm would have left an impression. It was there argued that the evidence of the expert, again Inspection Yuen, should have been excluded. The Court rejected that contention but considered the issue of the quality of the evidence. In delivering the judgment of the Court I said this at p.4:

"The difficult is that it was not the strict proof which is required in a criminal case. A defendant is perfectly entitled to say to the Crown 'prove your case'. The function of an expert is first to give his opinion upon an issue in the case based on inferences which he draws from perceived facts as a result of his knowledge and experience; second, to give evidence of fact which his training has equipped him to perceive but which would not ha observed by a layman. Third: (and this was a quote from Davie v. Edinburgh Magistrates (1953) S.C. 34 at 40) to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence'."

21. Here, as there, the evidence of Inspector Yuen fell squarely within the second category. The judge here was, as was the jury there, entitled to know where they appeared and to have them specifically pointed out to him. The judgment went on:

"When, as here, they are not, then a warning that the opinion becomes the 'bare assertion' of the expert and could well be considered to he of little weight, but is one of the factors which lies for the consideration of the jury, becomes desirable."

22. This decision does not appear to have been brought to the attention of the trial judge though it was in existence at the time of trial.

23. At the conclusion of Chan Kam Tak⁽¹⁾, we had suggested that if there is a contest as to finger print evidence, then in a jury trial this should he made clear at the pre-trial review so that enlargements can be produced. The difficulty here is that there is no such procedure in the District Court and it seems to be common, for it is unusual to have finger print evidence disputed that unless a conflict is known to exist no enlargement is produced. This practice is fraught with danger as the submissions in this appeal make clear.

24. But there is more here than simply the non-production of the enlargement for the judge to study to test the accuracy of the conclusions of the expert and to permit him to form his own judgment. The tape itself should have been brought to the expert not merely a small photographic representation of it It would have been for him or his subordinates to, if necessary, "lift" the print and it would have been for him to examine. the tape directly and make a photographic enlargement to assist him in the making of his comparison.

25. The judge may well have been right in his deduction that the photographic representation of the print was a reverse image and therefore that the print was on the inside of the sellotape and would have been placed there by someone sealing up the newspaper wrappings on the "tubes". But the evidence on this was by no means clear and if it were a mirror image, given the size of the photograph and consequentially of the print, this can hardly have assisted the expert in the course of his examination.

26. In my judgment, the "necessary scientific criteria" to which we referred in Chan Vam Tak⁽¹⁾ was not before the trial judge; second: and perhaps more important, the comparisons made by the expert despite his positive evidence as to the similarity were, in the light of the methodology, flawed.

27. We were asked in the course of the hearing to admit counsel's note, approved by the judge, of his oral reasons given at the time of his reaching, his verdict so as to supplement the Reasons for Verdict which have been placed on record. This we refused to do. The Crown had not been consulted, as it should have been, before the judge was approached so that an agreed note of that which the judge said could be presented to him. Further, section 80 of the District Court Ordinance provides that before pronouncing judgment the judge shall record his verdict and then "or so soon thereafter as may be" place on record a short statement of his reasons for that verdict.

28. Mr. Bruce accepts that the better practice, for a man is entitled to know why he is convicted and face the possibility of prison, is not simply to say "guilty" and give reasons later but to give the reasons there and then.  This is not intended as any criticism of the trial judge here for he did, very properly, inform the Applicant as to why he was coming to his verdict of guilty and at the time that he reached that verdict. The apparent effect of the course he took is that there are two "Reasons for Verdict" the oral and that placed on record, the latter being a fuller version and the statutory one. The Courts have commented before on the anomalies which can arise in the light of the provision of section 80. This is one.

29. I accept that the conclusions of the judge on the finger print issue were conclusions of fact and that it is a strong thing to upset conclusions of that kind by a experienced trial judge but the opinion of the expert here was even less than the "bare assertion", as we described it, in Chan Cam Tak⁽¹⁾. It was a flawed opinion by reasons of the methods used and also by reason of the presentation of that evidence. It is clear that the finding of a finger print of the accused in the circumstances it was said to have been found here would be damning evidence. But the evidence was such that I do not think the trial judge to have been entitled to find as he did "beyond doubt" that the finger print was that of the Applicant.

30. In those circumstances, I would find the conviction to be unsafe and unsatisfactory. We grant leave to appeal, treat the hearing as the hearing of the appeal, allow the appeal and quash the conviction.

31. We shall hear counsel, if they wish to be heard, on the matter of a re-trial.

(1) Criminal Appeal No. 204 of 1987 (unreported)

Representation:

Anthony Hatton, Esq. (Andy Lo & Co.) for Applicant

A.A. Bruce, Esq. & Valentine Yim, Esq. for Crown/Respondent