Wong Kwok Sun v. The Queen

CACC000558/1981

-----------------

Coram: Liu, J. in Court

Date of Judgment: 7th July 1981

-----------------

JUDGMENT

-----------------

1. On the 24th February, 1981 the appellant was kept under surveillance by police officers across the road from the 1st floor of No. 3-5 Cheung Lok Street. P.C. Kwok was with a W.P.C. in those premises. His colleagues stationed themselves in the vicinity with a view to rendering assistance. The appellant was observed to be on the other side of the street in the company of a woman. As soon as P.C. Kwok's vision was obstructed, he together with the woman police constable hastily left the premises, and between the ground floor and the 1st floor the appellant was confronted by P.C. Kwok. There was allegedly a struggle in which certain injuries were said to have been suffered by P.C. Kwok. The allegation was that despite evasive action the police constable received a blow at his face and that the appellant attempted to push P.C. Kwok down the stairs. A pair of spectacles worn by P.C. Kwok was damaged.

2. After the incident, P.C. Kwok was examined and certified by a doctor in casualty as having sustained a minor abrasion on his left hand. P.C. Kwok had told the learned magistrate that in addition to damage to his spectacles he felt pain on his right cheek as well as pain on his chest. He prevaricated as to the location of visible injury on his person. At one time, he described an abrasion on his chest. Then, he told the learned magistrate that it was on his left forearm.

3. The appellant managed to free himself from the hold of the police constable and ran into a book-store at No. 6 in which four colleagues of P.C. Kwok came to his assistance and the appellant was subdued. The appellant was not thereupon searched by the police constables or any of them; nor was he searched in the street. The whole party of police officers together with the appellant returned with the appellant's lady companion to the same staircase. There the appellant was allegedly searched by P.C. Kwok in the presence of D.C. Au. P.C. Kwok explained to the learned magistrate that in fact only three - the appellant, D.C. Au and himself were up the stairs with the rest of the police party waiting at the bottom of it. P.C. Kwok and D.C. Au gave slightly different versions as to where the appellant was in fact handcuffed, and P.C. Kwok made no reference to any eye injury received by the appellant.

4. On the staircase landing, so ran the evidence of the prosecution, the appellant was searched. Thereupon 26 packets of suspected dangerous drugs were found together with other articles such as betting slips, empty Po Chai Pill phial and two cigarette packets.

5. P.C. Kwok was unable to offer any explanation as to why the appellant was or had to be searched on the staircase landing.

6. Both police officers testified that syringe and needles were found somewhere on the floor of the staircase landing.

7. Having heard the evidence with the appellant electing to remain silent, the learned magistrate convicted the appellant. He recorded in his notes of proceedings after deliberation that P.C. Kwok was a poor witness, confused and unclear as to some aspects of the case but that D.C. Au was a better witness. There was another charge laid before the learned magistrate of assaulting a police officer. That charge was found not proved beyond reasonable doubt by the learned magistrate.

8. No less than six grounds were advanced by Counsel for the appellant. In the main, it was contended on his behalf that the learned magistrate failed to pay sufficient regard to the discrepancies between the evidence of P.C. Kwok and D.C. Au and to the unsatisfactory evidence of P.C. Kwok, by the latter of which the prosecution case was principally sought to be proved. It was criticised that the learned magistrate should not have allowed himself to speculate as to the divergence in the evidence of injuries sustained by P.C. Kwok from the medical certificate, Exhibit P. 1. It was also argued that there was no evidence to support the observation of the learned magistrate that P.C. Kwok was inexperienced. Much play was made on the different versions as to where the appellant was in fact handcuffed. No effort was spared on attempting to take advantage of every possible aspect in the proceedings. It would not be necessary for me to deal specifically with each ground of appeal. On these criticisms, the mainstay of the appellant's argument was that the learned magistrate should have paid due regard to the unsatisfactory main bulk of the evidence from P.C. Kwok, on which the prosecution principally relied and should not have given weight to the supportive evidence of D.C. Au. The learned magistrate was aware of and had mastered all these matters. He rightly regarded P.C. Kwok's own injuries, the location of handcuffing and the appellant's eye injury received during the struggle as peripheral. From the tenor of his finding, the learned magistrate was left in no doubt that the unsatisfactory evidence of P.C. Kwok did not have the effect of undermining the evidence of D.C. Au on the central issue of drug trafficking. The learned magistrate consequently placed no reliance on the evidence of P.C. Kwok, but he had nevertheless taken it into consideration in evaluating the evidence of D.C. Au. In conclusion, the learned magistrate was satisfied beyond reasonable doubt that the evidence sought to be adduced by the prosecution through D.C. Au in support of the main evidence given by P.C. Kwok was sufficiently credible as proof that the 26 packets of dangerous drug were in fact found on and retrieved from the appellant himself. On the evidence of D.C. Au alone, the conviction of the appellant was founded.

9. Save for a passing remark which had caused much anxiety, I would have on the exemplary analysis of the learned magistrate in his Statement of Findings refused the appeal. At paragraph 10, being the last paragraph in his Statement of Findings, the following was said:

"In particular, I was satisfied on a balance of probabilities that the appellant had the drugs for the purposes of trafficking, on the whole of the evidence before me."

10. Counsel for the Crown recognized that there was no specific reference to any legal presumption in that last sentence which was tied up with "the whole of the evidence", although the learned magistrate in a preceding sentence clearly recorded that he was satisfied beyond reasonable doubt by the evidence of P.W.2, D.C. Au, whom he found to be truthful, credible and accurate. It was conceded by Counsel for the Crown that the reference to "a balance of probabilities" could not be satisfactorily accounted for.

11. Miss Yeung for the appellant informed the court that she relied as well on this observation of the learned magistrate in his Statement of Findings, which, it was claimed, was a fundamental error in burden of proof. The objection was technical, but it cannot be said to be innocuous. On this technical objection from Miss Yeung, the appeal must, in my view, be allowed. However, the appellant was caught, as it were red-handed, whose alleged guilt was sought to be established by very direct evidence from D.C. Au which was described as truthful, credible and accurate. This is a case, in my judgment, which warrants an order for re-trial. In conclusion, I order:

Representation:

Mr. John Upchurch, Counsel for the Respondent.

Miss Rose Yeung instructed by Messrs. H.M. So for Appellant.