Chu Wai-hung v. The Queen
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CACC001152/1981
BETWEEN
________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 30 June 1982 __________ JUDGMENT __________ McMullin, V.-P.: 1. CHU Wai-hung was convicted under section 4 of the Dangerous Drugs Ordinance with trafficking in a dangerous drug. The particulars being that he had been engaged in a transaction involving a quantity of 70.98 grammes of mixture containing 22.89 grammes of salts of esters of morphine. 2. He was arrested on the 4th of March 1981 in McDonald's Restaurant in Jordan Road. He was tried before the District Court, commencing on the 11th of December 1981, and on the 17th of that month he was convicted together with two other persons who were tried with him on the same charge and who are not now appellants. 3. He applied for legal aid which was refused on the 10th of February 1982 and subsequently he put in grounds of appeal upon his own part. He was refused leave to appeal by the single judge on the 6th of April and he renewed his application on the 17th of April. 4. The Crown's case rested principally upon the testimony of a Sergeant Tang who was at that date a sergeant in the Royal Hong Kong Police Force No. 1771. That officer had apparently information from one of those subterranean sources open to the police which resulted in him being contacted by a certain Mr. Wong on the 4th of March 1981. He met this man on the second floor of the Capital Restaurant at about 10 minutes to two on that day. Wong was then together with the 3rd defendant and another man called Ah Cheung. The sergeant who was posing as a potential dangerous drugs purchaser asked what was the price of drugs at that time. The 3rd defendant, Tang, offered to let him have 20 packets at $1,500 per packet. The sergeant promised that he would get the necessary money. It was arranged that Wong would contact the sergeant later that day. At about 4.30 that day, Wong rang Sergeant Tang 1771. As a result of that phone call later in the day at about 7 o'clock, the sergeant consulted his superior officer Inspector Ip and was given by that inspector a sum of $30,000 in what has been referred to as 'stage money' presumably imitation rotes. Armed with this, he went to McDonald's Restaurant in Jordan Road, getting there at about 8.00 p.m. There were also a number of other police constables who went at the same time to that restaurant and stationed themselves in various positions inside. The sergeant saw Mr. Wong seated at a table and he went up and joined him. Shortly after that, according to the sergeant, Wong went out and brought in the 3rd defendant. The 3rd defendant asked about the money and the sergeant showed it to him by taking out the notes, demonstrating it to the 3rd defendant under the table. He was then told to wait by the 3rd defendant. The time was then about 20 minutes to ten. According to the sergeant's original story, the 3rd defendant came in with the 1st defendant. The 1st defendant asked the sergeant "Have you got the money?" and the sergeant answered in the affirmative and showed him also the money under the table. The sergeant asked the 1st defendant "Have you the goods?" The 1st defendant then drew back the lapel of his jacket and showed a newspaper packet tucked inside the inner pocket. It was at that moment, according to the sergeant, that the present appellant appeared. He came in from the outside, approached the table and sat on the right hand side of the sergeant. He was introduced by name, by the 1st- defendant, to the sergeant. The sergeant then said he wanted to see the goods and the 1st defendant intimated to aim that he should accompany him to the toilet which he did. The sergeant and the 1st defendant went into the toilet and inside the 1st defendant produced a package from his pocket which was torn at the request of the sergeant showing within some smaller packets. They then left the toilet together and, according to the sergeant, the 2nd defendant, the present appellant, was at that time standing within the toilet area. It had been the sergeant's story that at the earlier stage of the proceedings while they were still at the table, what was passing between himself and the 1st defendant was audible to the 2nd defendant and Mr. Wong. 5. When they returned from the toilet to the table, that is the sergeant, the 1st defendant and the 2nd defendant, the present appellant, the sergeant told the court that he asked why there were only 6 packets within the larger packet. It was his evidence-in-chief that the 2nd defendant, this appellant, then said "It is very dangerous now to have possession of so much goods. You are not doing this." presumably meaning to imply that the sergeant was not a man experienced in the trade and that it would not be expected that anybody supplying drugs would take so much on any given occasion to pass over to his contact. 6. Then in his evidence-in-chief the sergeant said that the 1st defendant said "Buy 6 packets first for $9,000". At this point the sergeant decided it was time to reveal his identity and he did so and all the other officers also joined in the subsequent action which consisted principally in the arrest of the persons at the table including this appellant. 7. It has been pointed out to us partly by the appellant on this appeal and partly by Miss Ida Cheung, who appears for the Crown, that the sergeant's evidence was, as the judge himself appreciated to some degree in conflict with that of another witness. His story was that it was Wong who brought in Tang, the 3rd defendant, and Tang brought in the 1st defendant. Whereas another of the officers present, P.C. 16620, said that it was Wong who brought in the 1st defendant and later the 1st defendant brought in the 3rd defendant to the table at which the initial discussions took place. However, it is clear that both of those witnesses said that the 2nd defendant, the present appellant, joined the others last of all. 8. Again it is pointed out that the sergeant had made a statement prior to the trial to his superior officer in which he had said that the phrase "why buy 6 packets" had been said by the 2nd defendant, that is the appellant, not the 1st defendant. When tackled upon this in cross-examination, he said that, in fact, both of them had said that. 9. The judge was aware of those discrepancies and he referred to the sergeant's evidence as confused in certain details but he accepted him as a witness of truth. He also referred to the fact that Mr. Tang might not, when giving evidence, have been as interested in the case as he had been at the time of the investigation because he had since left the Police Force. 10. That is the case. The sergeant, it appears, was disciplined for gambling in duty hours and was discharged from the service. He appealed from that order of discharge and was reinstated but at the rank of constable. Being dissatisfied with that, he subsequently resigned from the Force. That, indeed, does afford some reason for supposing that his interest in the case had waned. 11. All 3 defendants gave evidence. All of them put forward stories of having been innocent bystanders involved in the affair purely by accident and as a result of intemperate police action. The 1st defendant said that he had a row with a man who was sitting at the table when he, the 1st defendant, wanted to take an empty seat beside him. Some hot and rather dirty language was exchanged. The 1st defendant moved to another table and finished his meal of fish and bread and then was about to leave when he was suddenly arrested by a person who later turned out to be a police officer. He was questioned about his criminal record and agreed that he had once been in trouble in relation to pornographic literature and he said he was taken to the police station for that reason. 12. The present appellant gave a very similar story. He was about to sit at a table where there was an empty seat. A man who was sitting there objected and after some words that man left, went out and returned again and suddenly said to the appellant that he would shoot him and made the appellant lie upon the floor. This person turned out to be the 1st prosecution witness, Sergeant 1771. 13. The third defendant said that he had joined a friend called Ah Cheung at the table. Ah Cheung went out for cigarettes leaving a newspaper packet in the possession of the 3rd defendant, As Ah Cheung was returning, the 3rd defendant observed him about to enter but suddenly, by an apparent change of mind, retreating from the premises. The 3rd defendant thought it better to follow him with the package to give it back to him. He was arrested then at the doorway and was taken to police station with the other two. 14. This defence of the appellant was considered by the judge in the context of all that has been said also about the other defendants. 15. In his grounds of appeal, prepared by himself, the appellant, in effect, said that the judge was at fault in believing the sergeant and the other police witnesses and in disbelieving his story. He made a specific point that the judge was mistaken in saying in his judgment that he, the appellant, had asked why the 1st defendant had only brought six packets. That does not appear in the evidence. The only trouble arising from that part of the evidence was the matter I already referred to, that is the sergeant's confusion as to whether one or both of the defendants had made a remark concerning the six packets. The appellant also alleged that while he was charged under section 4(1) paragraph (a) of the Ordinance, he was convicted under the subsequent paragraphs (b) and (c). 16. It is true that the judge made reference to those paragraphs when recording his reasons for verdict but that was solely in relation to some doubt that he entertained as to the difference between dealing in and dealing with a dangerous drug. There is ho doubt that the appellant was charged under section 4(1) paragraph (a) with trafficking. 17. Such was the evidence for the prosecution and the defence. On that evidence there was ample ground upon which the judge could found his decision. Nothing that the appellant has been able to say in a prolonged address this morning has added in any way to his grounds of appeal and those grounds we find to be without substance. 18. That is enough to refuse his application but I have to refer finally to another matter dealt with by the judge which, however, will have no impact upon our decision as to the lack of validity in the application. 19. The judge found himself somewhat exercised with the fact that the evidence disclosed that this particular appellant had been found on one occasion, according to the police evidence, involved in a transaction which obviously was concerned with the supply for sale of dangerous drugs. The judge referred to two Full Court decisions HUI Shu-tan(1) and MAX Ying-sung(2) . Those cases are authorities for holding that dealing in dangerous drugs implies a commercial transaction, involving something more than an isolated instance of sale and purchase. However, those cases were concerned with offences under the former Dangerous Drugs Ordinance and in particular under section 10 of that Ordinance. That section forbids a number of activities including dealing in, dealing with, procuring, supplying etc. The Ordinance, as it then stood, contained no offence of trafficking or possession for the purpose of trafficking. The specific offence of trafficking was introduced when the old Ordinance was repealed and replaced by Ordinance 41 of 1968. 20. The new Ordinance was, in effect, a total overhaul of the former dangerous drugs law and trafficking is defined in section 2. The definition includes procuring and supplying as well as dealing in, dealing with etc. The former section 10 in the old Ordinance was a comprehensive provision forbidding a wide variety of activities in relation to dangerous drugs. The new law reflects section 10 in several separate sections but where is no need for present purposes to go in detail through the sections in which the previous provisions are separated out into several different sections. Suffice it to say that procuring and supplying, dealing in and dealing with dangerous drugs were covered by section 10 of the former Ordinance. To that extent the old and the new provisions are the same since the trafficking definition includes those things as well. However, in the two cases to which the District Judge referred, the charges under consideration were specific charges of dealing in dangerous drugs. The 1964 case was directly a charge of dealing in dangerous drugs and the 1965 case was a charge of conspiracy to deal in dangerous drugs. The question of what constitutes dealing in was squarely before the court in both of those cases. 21. The charge we are now concerned with is trafficking contrary to the provisions of section 4. The evidence accepted by the trial judge was quite sufficient to show, at any rate, procuring and supplying. We are not, therefore, directly concerned with any dispute as to the possibility that dealing in and dealing with may imply different sorts of proof and be applicable to different kinds of circumstances. 22. In saying what I have said I do not mean to imply that under the new law, where the charge is simply trafficking, the kind of question which troubled the District Judge cannot arise again. There may well be cases where the evidence is of a wholly indirect kind out involving any physical dealing with or procuring or supplying and where, nevertheless, there is evidence of an indirect kind (for example documentary evidence) to support the charge of trafficking in the sense of dealing in a dangerous drug. That is merely an example. In such a case a question might well again arise as to whether some continuity of commercial dealing must be shown. Such cases would necessarily be rare. In a straightforward case such as the present the activities described in the evidence would undoubtedly, amount at least to dealing with dangerous drugs. 23. For these reasons the application is refused. (1) (1965) H.K.L.R. 341 (2) (1964) H.K.L.R. 708 Representation: Appellant in person Miss Ida Cheung for Respondent/Crown |