HKSAR v. Yeung Pak Cheong

CACC000598/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.598
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. and Liu, J.A.

Date of Hearing: 13 August 1998

Date of Judgment: 13 August 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter was found guilty after trial before Judge A. Chan on one count of trafficking in dangerous drugs and he was sentenced to imprisonment for 5 1/2 years. He now seeks leave to appeal against that conviction.

2. The facts of the prosecution case were, as the trial judge remarked, simple ones. PW1 and PW2, two police officers belonging to the Special Duty Squad, on 27th January 1997, together with other team members, which included a Senior Inspector , a Sergeant and other officers, carried out an operation at the Ma Tau Wai Estate in Kowloon. At about 5:35 p.m. on that day, the two aforesaid officers laid ambush near a car park in the estate and kept a red car under observation. They then waited in order to see whether anyone appeared.

3. At about 6:30 p.m., the applicant appeared and approached the vehicle. He was intercepted by the two officers, searched by PW1 and a black bag was found to be holding a black bag in his left hand. Inside this bag were found a quantity of money, a box containing what appeared to be a scale and a black plastic bag containing five resealable plastic bags which contained suspected dangerous drugs. The applicant's body was also searched but nothing of significance was found. The vehicle was searched, again nothing of significance was found. The applicant was taken to his home and a search was carried out there. Again, nothing of significance was found.

4. The applicant in his evidence said that he was arrested not outside but inside his car. He said that his car was searched and nothing was found from it or his person but that later at his home drugs in a bag were produced and he was told to cooperate and to implicate a person known as "B Chai". He refused to do so and was later charged with possession of the drugs in the bag.

5. The trial judge very carefully examined the evidence of the prosecution witnesses. He said:

"The defence is one of frame-up. The Prosecution's case is very simple. So simple that it is easy to concoct and must be difficult for the defence to find inconsistency within the evidence of the Prosecution witnesses. Last but not least, the criminal burden of proof on the Prosecution is a heavy one. It is with these matters in my mind that I approach the assessment of the credibility of the witnesses.

Both PW1 and PW2 were subjected to searching cross-examination by Mr. Delaney, who appears for the Defendant. I have done my best to scrutinise their demeanour under cross-examination.

In respect of PW1, his evidence is clear and he remained consistent and composed when his evidence was tested. There is, to my mind, only one blemish on his credibility. He appeared to be surprised by the challenge of the defence that the car door was unlocked with the use of a remote control device by the Defendant. I have not forgotten that PW1 had said in-chief, before clarification initiated by me, that the Defendant had put the key into the ignition prior to interception by him. This is a matter which may support a point in the Defendant's version of events. PWl's demeanour for that short moment when he was cross-examined raised a question in my mind whether he was telling the truth.

However, to be fair to PW1, when he gave evidence in-chief, he never said that the Defendant had entered the said vehicle. Indeed, the tenor of his evidence was to the contrary. That was the reason for my questions on this point. The reference to the ignition might be a slip of the tongue. It is true that the Defendant's evidence is that the remote control would have unlocked the door. On the other hand, both PW1 and PW2, who I find to be a convincing witness (see below), said that the interception was made outside the said vehicle. The Defendant's own evidence is that he was outside the said vehicle holding 'P1' in his hand when he was searched. I do not know if the remote control device was functioning properly at the time. In any case, the point does not go to the heart of the issues.

With these considerations in mind, I do find that PW1 is a truthful witness.

I am impressed by PW2's demeanour. He answered the cross-examination quietly and calmly. The only inconsistency in his evidence, compared with that of PW1, concerned the timing when he radioed the other officers. A matter which Mr. Delaney has rightly reminded me of in his submission. In his evidence-in-chief, PW2 said that he radioed the other officers after the search of the Defendant was concluded. PWl's evidence was that it was after the search of 'P1', but before a thorough search of the Defendant's body, that the other officers were radioed. However, during cross-examination, PW2 said that the time elapsed between the interception of the Defendant and the radioing was approximately 3 minutes, which coincided with PWl's evidence-in-chief as to the time taken for the 'initial' search of 'P1'. Further, I believe that the 'entire' search must have taken more than 3 minutes. In these premises, I believe that PW2 was mistaken over this inconsistency. The correct sequence is as related by PW1.

I find that PW2 is also a truthful witness."

6. The judge went on to examine the evidence of the applicant. Again, he examined that evidence with careful scrutiny. He concluded that the applicant was an intelligent liar and a good actor and rejected his evidence.

7. The applicant now comes before this court asking for leave to appeal against conviction relying upon 11 grounds of appeal.

8. The first of these grounds is that it was not until the second day after arrest that PW2 made his post record of what had occurred. We say immediately that we find nothing sinister at all in this. He clearly took the first reasonable opportunity he had to make that record. It is completely without merit to suggest, as it was suggested in cross-examination, that he should have been trying at the time when the investigation was proceeding to scribble down a record of what was going on.

9. It is complained that the words and details in the evidence of PW2 were exactly the same as those used by PW1, and that they even made the same mistakes while giving evidence. A reading of the evidence and of the cross-examination of these officers does not bear out this assertion. PW2 readily agreed that he and PW1 had consulted together generally as to the times when incidents had occurred. He was not, it is also to be noted, cross-examined upon the basis that his version was a joint concoction, and there is nothing in the evidence in chief or in the cross-examination to suggest that that was so. We find no merit in this first ground.

10. The second ground is that there was no fingerprint evidence. This is certainly so. This is a complaint that is repeatedly made in this court. It has no merit whatsoever. It is a neutral factor. The court must make up his mind upon the basis of the evidence that does exist. The fact that some evidence is not before the court proves nothing one way or the other.

11. The third ground suggests that there were doubts in the evidence of PW1 and PW2 because they did not explain what their superior officers and other members of the team were meant to do. This, we say immediately, was fully canvassed in cross-examination and the trial judge undoubtedly had it in mind when it came to his conclusion.

12. It is also suggested that the evidence of these two officers was contradictory and that the trial judge took only PW1's evidence into account. This is plainly not so as can be seen from the passage in the Reasons which we have just read. He considered the evidence of both officers and he found them both to be truthful.

13. The fourth matter urged refers to what is submitted is unsatisfactory evidence as to the use of the remote control anti-car-theft device. The question raised is whether he used this device to unlock the car, which would mean that the evidence of the police officers was wrong, or used a key. The judge in his Reasons dealt with this matter. There was an area which was not completely clear but, at the end of the day, this in no way shook him in his conclusion that PW1 and PW2 were truthful witnesses.

14. The fifth ground concerns the handbag and the mobile phone. It raises matters of evidence which were for the trial judge to resolve. He did so as follows:

"I believe that the Defendant's explanation to me as to why he was holding 'P1' in his hand despite having laid it down after he entered the said vehicle was a concoction. Firstly, his demeanour betrayed him. Secondly, his evidence about having to take out the mobile phone from 'P1', which he volunteered to explain why he had 'P1' on his laps, is contradicted by the evidence of both PW1 (that the phone was found inside a front pocket of the jeans which the Defendant was wearing) and PW2 (found at his waist). I can think of no reason for PW1 or PW2 to lie about this."

15. We turn then to the sixth ground. This is raised by the defendant because he suggests a failure by either the judge or the interpreter correctly to interpret the words "falsely accuse" and/or "frame up". We must say that we can see very little difference between those two phrases whichever one was used. However that may be, the trial judge dealt with this point and it is one which we consider is entirely without merit. It is, in our view, a red herring if ever there was one.

16. Grounds 7, 8, 9 and 10, all raised matters of evidence which involved demeanour and credibility. Such matters are entirely for the determination of the trial judge. He made determination and no challenge can now be properly made to his findings.

17. The final eleventh ground questions the trial judge's refusal to treat the applicant as a man of good character. We can say no more than that he is not a man of good character and the trial judge was entirely entitled to take that into account. That is the law. It must, moreover, be said that the judge dealt with this aspect of the matter very fairly indeed. There is again nothing in this ground.

18. The applicant has raised nothing of any materiality and his application for leave to appeal against conviction is, therefore, refused.

Representation:

Mr. Barry Moorfoot, S.A.D.P.P. and Mr. Prakash L. Daryanani (D.P.P.) for the Respondent.

Applicant in person.