The Queen v. Kup Kin-keung

CACC000720/1983

BETWEEN

Coram: Hon. McMullin, V.-P. in Court

Date: 29th June, 1983

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JUDGMENT

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McMullin, V.-P. :

1. This was a case in which the evidence fell within a very small compass. The appellant was convicted on a single count of trafficking in dangerous drugs. Evidence was given by three police officers who were keeping observation from a kind of 'hide' on the third floor of Block 15, Wongtaisin Lower Estate upon the area immediately subjoining that estate which consists of further blocks and a tangle of smaller structures, some apparently of a somewhat temporary nature, housing restaurants and various other establishments.

2. The case on the face of it was a simple one. The three officers described how they had observed the appellant standing some distance away, a distance described by one of the officers as about 30 yards, and how they saw him approached by another person, originally the 2nd defendant in the case. Each of the officers said that he saw the second man hand some notes to the appellant who then removed something from his mouth and gave that to the 2nd defendant who then left the appellant and made his way back along an alley way towards the block in which the officers were keeping observation. Two of the officers then left that building and went down into the street where they arrested the second defendant.

3. It appears at any rate to be common ground that the transaction between the two defendants took place outside a restaurant called the Sun Lok Restaurant, but the sole point made upon the appeal, and the substance of a very elaborate series of grounds presented to the court, raises the question: where exactly did the transaction take place?

4. Photographs were produced and two of these are of importance. The photograph numbered 2 was shown to the 1st prosecution witness Inspector Prisk who marked with an X upon it the place at which he believed the transaction had occurred. That shows an area unobstructed by any intermediary buildings and close to the point at which the police officers must have been keeping observation.

5. The 2nd and 3rd prosecution witnesses however, the police colleagues of the 1st prosecution witness, marked upon the other photograph, numbered 4 in the case, a point indicating the location of the Sun Lok Restaurant. This indicates a quite different area from that marked by PWl in Photo 2.  The magistrate was aware that there was a discrepancy in the testimony of these witnesses and when giving his decision immediately at the conclusion of the case, he said either PW1 or PW2 and PW3 had made an error as to where the transaction occurred. He said: "I accept this as an honest mistake probably made by PW1."

6. That is a finding of some importance since, if the transaction took place at the point indicated by the 2nd and the 3rd prosecution witnesses, it is clear, from the most superficial examination of the photographs themselves, that the possibility of accurately observing would have been considerably lessened not only by reason, of the fact that that point is considerably further away from where the police 'hide' was situated, but also by reason of the fact that it is in an area obscured by low roofs, canopies and other obstructions, so that when the 2nd defendant parted from the 1st, assuming that the lst was righly identified by the police officers, there certainly would have been a point in time when he was totally out of the view of any of those witnesses. And the first defendant too would necessarily have been out of view of PW1 in making his way to where he was eventually arrested.

7. The magistrate nevertheless came to the conclusion that the evidence justified him in holding that PW1 had kept both of the men who subsequently became defendants in view throughout and had not lost sight of them.

8. The 2nd and the 3rd prosecution witnesses described how they had left the 1st witness and gone down into the street where they had arrested the 2nd defendant. In his hand they found a packet which upon subsequent examination was found to contain the dangerous drugs referred to in the charges. The 1st witness then left his post and joined them in the street. He told them that he had seen the 1st defendant move a little distance from where he had been and he led them together with the 2nd defendant to the person who he identified as the appellant who was then intercepted and searched.  There was found upon him a quantity of money, some $60, with about $16 in the right hand pocket which had been identified as the pocket involved in the course of the transaction. He was not, however, found in possession of any dangerous drugs.

9. The principal point made by Mr. O'Cock is that having adverted to the fact that there was this divergence in the evidence between the 1st witness and the other two witnesses, the magistrate did not then consider the possibility that since he accepted the 2nd and the 3rd prosecution witnesses as accurately identifying the point of the transaction, that left open the possibility that there had been a mistake in identification.

10. Now it may very well be that as Mr. Riordan for the Crown says the magistrate was entitled to rely simply upon the basic evidence of PWl, PW2 and PW3 to the effect that they had observed both of these people for a period of 9 or 10 minutes before action was taken, so that the possibility of mistaken identity was small. It is true that on their evidence this was not a fleeting glimpse case but the whole point, or rather a substantial part of the point, being made upon the appeal is this, that if the transaction took place outside the Sun lok, in the place indicated by the 2nd and 3rd prosecution witnesses, the identification evidence would conform to the description of one "made under difficult circumstances for a longer period" (Turnbull) and that is something to which the magistrate did not advert when he came to estimate the evidence. Indeed when eventually composing his formal statement of findings, although he had originally found that the lst prosecution witness to be the least accurate, he appears to identify him as the principal witness upon whom he relies.

11. There is one further point which is that, upon arrest, according to the 1st prosecution witness the defendant said nothing, whereas according to the 2nd prosecution witness, upon being confronted in this way, the appellant instantly denied having had possession of drugs or having sold them to the 2nd defendant who was then in his presence. That factor in itself is not a particularly important one but it was an additional factor to which attention should have been paid.  One cannot say that the magistrate would not have attached some significance to such a disclaimer inasmuch as he does allege that nothing was said, possibly thereby indicating that he attaches some weight to the fact that there had been, as he found, no disclaimer. The case is thus one in which this could, because of the failure of the prosecution to clear up what was an obvious difficulty in the evidence - something that might well have been cleared up by further examination and cross-examination - is left with a lurking doubt. Mr. Riordan has asked me to say that the effect of the evidence of PW2 and PW3 is merely that they were identifying the Sun Lok Restaurant outside which, as is common gruund, the transaction took place, without identifying the point at which the X appears on photograph 4 as the exact point of the transaction. That would be a contention of more substance if it had been made clear in the course of the evidence that the Sun Lok extends for some distance downwards towards the front of the photograph, so that it could truly be said that the point marked X by Mr. Prisk is a point outside the Sun Lok Restaurant. On what is before this court however it seems clear that the X thus marked is outside a quite different restaurant which occupies a corner site and bears the name Ying Hing. For these reasons therefore the appeal will be allowed and the conviction quashed and the sentence set aside.

Representation:

C.M.P. O' Cock of C.M.P. O' Cock & Co. for Appellant.

K. Riordan for Respondent/Crown.