The Queen v. Lau Kam Ching

IN THE COURT OF APPEAL

1986, No. 608
(Criminal)

BETWEEN

THE QUEEN

and

LAU KAM CHING

__________________

Coram: Silke, V.-P., Clough & Power, JJ.A.

Date of Hearing: 29th May 1987

Date of Judgment: 29th May 1987

__________________

J U D G M E N T

__________________

Silke, V.-P.:

1. The Applicant Liu Kam Ching was convicted by His Honour Judge Corcoran of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. The somewhat vague Particulars of Charge allege that "at Kowloon" he did have in his possession 146.61 grammes of a mixture containing 15.65 grammes of salts of esters of morphine.

2. It had been the evidence of two police witnesses, one a Sergeant, the other a Constable 23163, that they were on patrol in Block 17 of Lam Tin Estate at about half past three in the afternoon of the 19th June. They were patrolling the various floors of that block and at about half past four they saw a man near a staircase between Blocks 17 and 16. Both the Sergeant and the Constable were in uniform. When they saw the man, he was about 60-70 feet away. When the man saw them, he turned and walked away. They followed up. They lost sight of him going round a wall. The Constable went up and the Sergeant went down the stairs. Between the 8th and the 9^th floors, the Sergeant said he saw the same man again.

3. He was on the 8th floor about 14 feet from a lift. The man ran down the corridor. The Sergeant ran after him. Near the end of the corridor, he got hold of The man freed himself and ran on to the 7th floor and, in the words of the Sergeant "disposed of" a handbag which he was carrying.

4. Eventually, the Sergeant caught the man. He identified throughout the Applicant as being the man.

5. There was a struggle between them. The man took two plastic bags out of his trouser pockets and attempted to stuff them through the honeycomb wall of the building. This the Sergeant prevented. The Police constable then came up and assisted the Sergeant in arresting the Applicant.

6. There were produced in Court the two main bags and inside those two main bags were found 19 smaller bags containing the drugs referred to in the Particulars.

7. The Applicant did not give evidence.

8. In the course of the evidence of the two police officers discrepancies emerged. These were, first: where the actual physical drugs were found; the Sergeant saying that he picked up the two bags from the floor; the Constable saying that he saw the Sergeant take the two bags from the hands of the Applicant.

9. Second: there were discrepancies as to where a sum of $3,042 was found; the Constable saying that it was in the Applicant's pocket and the Sergeant saying that it was found in the handbag which had been "disposed of" but which was not produced at trial. Third: the two plastic bags were torn when they were produced in Court - they had been presented to the Court in sealed packets - there was a difference as to whether they were seen to be torn at the scene, whether one only of them was torn or whether neither of them was torn.

10. The main ground of appeal advanced to us by Mr. Alderdice is that there were sufficient discrepancies here to place the trial judge on notice - for, as Mr. Alderdice submitted, these were no novice policemen to such a degree that he ought to have been more cautious than he was in accepting their evidence.

11. In cross-examination of the officers, defences had been suggested. First, it was suggested that they were chasing someone but not the Applicant; second, it was suggested that the packets of drugs which were found had been discarded by that man and not by the Applicant. Those raised the implication that:

(a)      the police were wrong in their identification of the Applicant as being the man they had seen and then chased and then found wIth drugs; and

(b)     that they had framed him.

12. Mr. Alderdice has submitted, and he had said everything that can be said on behalf of the Applicant, that the trial judge should have considered the possibility of the evidence as tailored for conviction as opposed to honest mistake thus leading to the discrepancies in the evidence.

13. The judge was very much aware of these inconsistencies and he set them out in detail in his Reasons for Verdict giving in each case his resolution of them. He also considered the submissions made by counsel then appearing for the Applicant, ltemizing them and the inconsistencies under nine separate heads. He concluded that, taking all the points raised by the defence counsel into consideration including the suggestion that either P.W.1 of P.W.2 or both could have framed the accused or tailored their evidence to secure a conviction and the suggestion that the drugs could have been carried by another person and thrown away by him, that he was left in no doubt about the general truth of the evidence of P.W.1 and P.W.2.

14. He had preceded his assessment of the discrepancies by saying that he had considered them all but he was left in no doubt as to the honesty and reliability of both off1cers as witnesses. Mr. Alderdice's task might have been a somewhat easier one had the Applicant given evidence in the Court below. But he did not choose to do so. The trial judge was left, therefore, with only the evidence of the prosecution. He heard and saw the witnesses who gave their evidence.

15. We are not prepared to entertain the lurking doubt that we are being asked to harbour. On the evidence before him, properly assessed, the trial judge was entitled to come to the conclusions he did. The application in respect of conviction is, therefore, refused.

16. The Applicant has sensibly abandoned his application in respect of a sentence of four years' imprisonment.

G. Alderdice, Esq. (C.W. Leung & Co.) for Applicant.

K.B. Eagan, Esq. for Crown/Respondent.