The Queen v. Ngan Chi Shing and Another

CACC000622/1988

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Coram: Hon. Fuad, V.-P., Hunter & Macdougall, JJ.A.

Date of hearing: 29 June 1989

Date of delivery of judgment: 29 June 1989

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J U D G M E N T

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Macdougall, J.A. (delivered the judgment of the court):

1. The applicants were tried and found guilty by H H Judge Gall in the District Court of trafficking in 212.30 grammes of cannabis on 17 December 1987, and of offering on 18 December to traffic in 20 pounds of cannabis. They now seek leave to appeal against those convictions.

2. The case for the Crown rested on evidence concerning several meetings. The first of these was at the Excelsior Hotel Coffee Shop on 10 December at which PW1, an undercover police officer, asked the first applicant if he would supply him with between 15 and 20 pounds of cannabis and with $10,000 worth of LSD tablets. On 14 December the two men met again, this time in the lobby lounge of the Regent Hotel where they discussed when the cannabis would be available. On this occasion PW2, who was also a police officer, was present. Later in a telephone conversation the first applicant agreed to supply PW1 with a sample quantity of a ½ pound of cannabis at a meeting in the Sheraton Hotel Coffee Shop. The agreed price was $5,000. On 17 December the sample quantity contained in a packet was brought to the Coffee Shop by the second applicant who handed it to the first applicant, who in turn handed it to the two prosecution witnesses in exchange for $5,000. This was the 212.30 grammes of cannabis referred to in the trafficking charge.

3. On the following day PW1 booked two rooms at the Sheraton Hotel. He and PW2, who was fitted with a wireless transmitter, met the applicants and two other men in the Coffee Shop of the hotel where there was a discussion concerning the prospective sale of 20 pounds of cannabis by the applicants to PW1. During the course of the discussion the men withdrew to one of the two rooms that the prosecution witnesses had booked. The discussion had reached the stage at which a decision was being made as to where the transaction should take place, when the second applicant became suspicious and suggested that they should remove their clothing to show that they had nothing to hide. The prosecution witnesses declined to do so and the discussion ended.

4. The applicants both gave evidence. It was their case that the first applicant had been told by one Ah keung, who dealt in the Chinese herbal remedy Ling Chi Cho, that a man called Sai Hung, PW1, would contact the first applicant with a view to buying a quantity of the substance. The first applicant claimed that PW1 contacted him and that as a result of an arrangement made between them, the two men met at the Excelsior Hotel Coffee Shop and discussed the availability of Ling Chi Cho. The first applicant told PW1 that he would notify him when some became available.

5. On 16 December the first applicant contacted PW1 by pager and told him that he had the goods. An arrangement was made for a meeting at 5 p.m. on 17th at the Sheraton Hotel Coffee Shop at which the first applicant would provide a 1/2 pound sample of the herbal medicine.

6. In the meantime Ah Keung had returned from China and instructed the first applicant to enlist the services of someone to assist in the transaction. It was then that the first applicant called in the second applicant. Ah Keung and the applicants then met and travelled by car to the Sheraton Hotel. There the first applicant left the car to locate PW1. Having done so he paged the second applicant who, having been handed the packet by Ah Keung, then delivered it to the first applicant. It was then handed over td PW1 in exchange for $5,000.

7. Mr Bell, who appears on behalf of the second applicant in this court but did not represent him in the court below, accepts that there is no question but that both prosecution witnesses and both applicants met together on that occasion. It was common ground that both applicants had had in their possession the packet containing what was found to be cannabis. Both admitted that they had sold the contents of the packet to PW1, but claimed that they thought it was Ling Chi Cho. They denied however that they had attended the meeting on 18 December.

8. Having considered the reasons advanced by counsel for the Crown and counsel for the applicants as to which witnesses he should believe, the judge concluded that the prosecution witnesses were witnesses of truth. He did not believe the applicants and found that they had failed to rebut the presumptions of possession and knowledge cast on them in respect of the first charge by section 47 of the Dangerous Drugs Ordinance.

9. Mr Bell advanced three grounds of appeal which he said were interdependent. The first and all embracing ground was that the judge failed to comply with the mandatory requirements of s.80 of the District Court Ordinance in that in his Reasons for Verdict he did not give any reasons beyond stating that he believed the prosecution witnesses and disbelieved the defendants. Although Mr Bell agreed that the judge had set out the matters raised by counsel for his consideration, he contended that he failed to resolve any of them. S. 80 provides:

"Before pronouncing judgment, a judge shall record his verdict and, at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict."

10. In this connection Mr Bell cited a number of cases that have been superseded by subsequent authorities and which therefore we should not have been invited to consider. All the earlier cases in which the issue of what a District Judge is required to do in the performance of his duty under s. 80 were fully considered by another division of this court in Chan King-man and others v. R. [1980] HKLR 105. There the matter was resolved, and approval was given to the following passage from the judgment of Blair-Kerr J in R. v. Low [1961] HKLR 13:

"But it must be remembered that the District Judge is himself the jury. He has heard the whole evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion."

11. Chan King-man was applied in Leong How-seng v. R. [1982] HKLR 245, the court there adding that Chan King-man should not be taken as giving a licence to a District Judge to refrain from stating, in as short a compass as is consistent with the complexity of the case, the reasons for the verdict reached. Both Chan and Leong were applied in R. v. CHEUNG Yuen-hing [1988] 1 HKLR 160.

12. For the sake of completeness we consider that we should also refer to the unreported case of Sheik Abdul Rahman Bux and others v. The Queen Cr. App. 756 of 1981 where Roberts C.J. in delivering the judgment of the court had this to say in connection with inconsistencies, contradictions and implausibilities that the trial judge had there recognized to have existed in the evidence of the Crown witnesses:

"It is thus clear that, when reaching his conclusion that he believed the prosecution witnesses, he was well aware of the inconsistencies which are to be found in their evidence.

It was argued that for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

This would place a wholly unreasonable burden on a trial judge. In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account, he is prepared to believe the various witnesses involved, save to such a extent as he may specify."

13. We express the hope that it will not be necessary for this court to traverse this ground again, and that it will not be invited to resurrect the approach that had been adopted in other cases, but was so clearly disapproved of in the authorities to which we have referred. The law is now well settled.

14. In our view the judge in the present case amply discharged his duty under s. 80. It has been said many times before that in some cases where there has been a clear conflict between the testimony of the prosecution witnesses and that of those for the defence, it may be that the judge can do no more than say he believes one side and not the other, or that he is left in doubt as to the guilt of the defendant. But in the present case the judge aritculated the reasons advanced for disbelieving or for entertaining doubts as to the testimony of the prosecution witnesses. There is no reason to believe that he did not give full consideration to these matters. Plainly, as he was entitled to do, having heard and seen them give evidence, he believed the prosecution witnesses.

15. A further ground of appeal advanced on behalf of the second applicant was that, in considering the evidence on the charge of offering to traffic in a dangerous drug, the judge failed to direct or warn himself adequately or at all on the question of the identification by the prosecution witnesses of the second applicant as being one of the participants at the meeting at the Sheraton Hotel Coffee Shop on 18 December 1987. There is not a shred of merit in this ground. The judge was not dealing with a fleeting glimpse situation. Moreover, the applicants had asserted in their defence that they had been present at the earlier meeting at the Coffee Shop on 17 December in the course of which the packet that was found to contain cannabis was exchanged for $5,000. According to the prosecution witnesses, whose testimony was believed, it was as a consequence of this meeting that it was arranged that the meeting of 18 December would take place at the same location. Furthermore the defence to this charge was not that there had been a case of mistaken identity, but that the prosecution witnesses were liars and that the applicants had not been present at the meeting on 18 December.

16. Having accepted the prosecution evidence as to the circumstances of the meetings of 17 and 18 December, it is in our view absurd to suggest that the judge should have directed or warned himself on the matter of identification in relation to the meeting on 18 December.

17. Finally it was contended that in all the circumstances of the case the judge ought not to have been satisfied that the second applicant was involved in the offering of cannabis on 18 December as alleged by the two prosecution witnesses. It is apparent from what we have already said that there was ample evidence before the judge which entitled him to conclude that the second applicant was so involved.

18. The first applicant, who was not represented at the hearing of this appeal, sought to take advantage of those grounds raised by the second applicant that could be said to be applicable to him. He did not wish to add anything to the submissions that were made by Mr Bell on behalf of the second applicant. There is therefore no need for us to embark on a separate consideration of his case.

19. For the reasons we have given we are satisfied that there is no substance in any of the grounds of appeal. Accordingly the applications of both applicants for leave to appeal against their convictions are refused.

Representation:

Mr John Halley, Sr. Assist Crown Prosecutor and Mr CHEUNG Wai-sun, Sr. C.C. for Crown Prosecutor

1st Applicant in person

Mr A Bell instructed by M/S Paul Kwong & Co. for 2nd Applicant