HKSAR v. Yee Chung Man

CACC000117/1997

IN THE COURT OF APPEAL

1997, No. 117
(Criminal)

____________________

____________________

Date of hearing: 23 September 1997

Date of delivery of judgment: 23 September 1997

____________________

J U D G M E N T

____________________

Saied, J. (giving the judgment of the Court):

1. The applicant and another man were indicted for two offences under the Dangerous Drugs Ordinance, Cap. 134, in the first count both were charged with trafficking in a dangerous drug, namely, 97.58 grammes of a crystalline solid containing 95.31 grammes of methamphetamine hydrochloride; and in the second count only the other man, Au Ka-chun, was charged with a similar offence, the dangerous drug there being 201.36 grammes containing 196.31 grammes of the same substance. There was no dispute that this substance is commonly known as ICE.

2. Au Ka-chun pleaded not guilty to the first count but guilty to the second count, whereupon on the prosecution application the trial judge ordered the first count against him to remain on the court file not to be proceed with without court's permission. He was sentenced to 8 years' imprisonment. He filed an application for leave to appeal against this sentence but abandoned it before today.

3. The applicant pleaded not guilty to the first count and after a trial before a deputy judge and a jury was convicted and sentenced to 10 1/2 years' imprisonment. He now seeks leave to appeal against his conviction.

4. The prosecution case briefly was that on 4^th April 1996, after a briefing at the West Kowloon Regional Headquarters at around 1:30 p.m., a police party comprising of five detective police constables went out on an anti-drug operation to keep surveillance over the front portion of the 3^rd floor of the building at 83, Parkes Street in Jordan. They arrived at the premises at around 2:00 p.m. and stationed themselves on the staircase between the 3^rd and 4^th floors. The senior inspector in charge and Stn. Sgt. Kwong (PW5) were in an unmarked police vehicle in Nan King Street, while two other sergeants were keeping observation outside the premises.

5. At around 3:10 p.m. a man, who was later identified as this applicant, was seen coming out of the said premises and as he stepped out of the metal gate DPC46735 (PW1) together with his colleague DPC1727 (PW2) intercepted him. After the police officers had identified themselves they took him to the landing between the 3^rd and 4^th floors where, upon being asked for his identify card, the applicant provided his British passport. PW1 then told him that he suspected him to be in possession of dangerous drugs and in the presence of his colleague proceeded to search the applicant. It was the prosecution case that from the front pocket of the applicant's jeans PW1 found a plastic bag inside which was what PW1 described as a translucent crystalline substance, which he suspected was a dangerous drug. PW1 then declared his arrest for trafficking in a dangerous drug and the two police officers took him into the flat. Other police officers were already in the flat which was searched and Au Ka-chun and a woman were arrested. Later, the three arrested persons were taken to Yaumatei Police Station. It was an admitted fact that at the police station PW4 sealed the substance found on the applicant in a valuable property envelope which was signed inter alia by the applicant and on 9^th April that sealed envelope was delivered to the Government Chemist for chemical analysis. It was also admitted by the parties that the Government Chemist certified the substance to be a dangerous drug of the type and weight as mentioned in the first count.

6. The applicant gave evidence and said that at around 2:30 p.m. on the material day he was sleeping on the sofa in the living room of the flat, and living there was the other man Au Ka-chun. He heard banging on the door and he called out, "What's happening?" One or two police officers rushed up to him, one grabbed his neck and kneed him in the private part which was very painful. Someone punched him in the abdomen and his hands were handcuffed at his back. He was told to sit on the sofa. He then saw a police officer whom he recognised as sergeant 4325 came in holding a transparent plastic box and told the police officers that the box had been thrown from the flat. He said that he was told to kneel down and he heard someone talking inside the room and some beating noises. The man in the other room also denied throwing the box out. The sergeant then told the three of them that he was giving them a chance to see if anyone would admit, otherwise all would be taken to the police station. The applicant said that no one made any admissions. They were taken to the police station where in the big room the same sergeant repeated to the three of the them what he had said about being given the chance to discuss. The applicant said that he was told to sign on the valuable property envelope as that was just a formality and he signed without knowing what the English writing was about. Under cross-examination he said that three of them were told to have a discussion and that the sergeant would "entertain" them if no one owned up to the possession, and that he would give him bail after he had given his statement. He said that there was no discussion and no one admitted possession and when he told the police so, they were not entertained.

7. The deputy judge summarised the defence case very concisely in these words:

"He says that he never had the ice in his possession at all. The police found him in the flat, had no dangerous drugs on him and he knew of none in the flat. He says that the police falsely manufactured the case against him; in short, that the police are trying to frame him."

8. The applicant called one witness, Tang Kui-leung, who lives at the rear portion of the 3^rd floor at the same building. He did not know the applicant. He said that when he returned home on 4^th April at his usual time of twenty minutes to three he saw no one outside his flat. Later, when he came out to dispose of a bag of rubbish two or three people went past the metal gate. And as he stepped out of the gate, someone grabbed him, one entered his living room and another with a hammer proceeded to the area between the front and the rear portions of the 3^rd floor. He said that people came down the stairs and after the door was broken in, those men who said they were police officers entered the flat at the front portion. He was then released.

9. It was also an admitted fact that the applicant was medically examined on 6^th April 1996 by the medical officer of Lai Chi Kok Reception Centre. His findings were

"There was a small brownish healing abrasion over his penis which was caused by friction on a blunt object. The injury was probably sustained less than one week. Assault is one of the possible causes."

10. The applicant's grounds of appeal are: "(1) that the judge had misled the jury and caused unfairness; (2) the jury did not take the doubt about the police evidence into consideration and (3) the jury had deliberately for only 70 minutes and no profound consideration was made."

11. We have gone through the deputy judge's summing-up to the jury and his directions to them about how to deal with the evidence. The summing-up shows that the judge was at pains to put both sides to the jury, including the medical evidence, in a very balanced and fair manner. Essentially what was in issue was the credibility of the witnesses which is a matter for the jury and it was left to them for their consideration. We can see no indication of any unfairness having occurred to the applicant.

12. It cannot be denied that there were some discrepancies and/or contradictions in the prosecution case. The judge pointed out to the jury when explaining to them the area of the staircase and the landing outside the two flats on the 3^rd floor and the short distance between the stairs. He said:

"I emphasise this now, because in the course of a trial which has run over several days and in which witnesses have been closely questioned - sometimes over the period of an hour or two hours or more about where they stood? Why they stood there? Where they stood in relation to other people? Who entered a room first, second, third or last? It is all too easy to lose sight of the fact that the witnesses are describing an event which happened very quickly and in a very small area of space."

13. Nevertheless, the deputy judge went on to repeat to the jury the evidence given by the detective constables of where and in which order they stood on the flight of stairs, about which there was some confusion as to what it meant precisely; and whether the half landing, the size of about 3 feet by 5 feet, was big enough to accommodate the police officers and the applicant. The witnesses were asked about the T-shirt which the applicant was wearing, whether it was tucked in or not. Besides these matters, the deputy judge also pointed out to the jury the inconsistencies in the witnesses' statements and their evidence. For example, there being no mention in the witness statement of PW1 of his asking the applicant for his identity card. The witness agreed it was not so stated but he remembered asking this of him. PW2 was asked about the keys after the defence counsel had called for the prisoner's property list and this witness said very firmly, like the other witnesses, that no keys were found on the applicant's person but were found near the television and, as those did not fit the door of the flat, were returned to the applicant who had said that they were for his house. This witness agreed that this was not in his statement. And the exhibits officer (PW4) who searched the room, confirmed that he found the keys on the television cabinet, and were returned to the applicant. Those keys, he said, were not seized because they were not related to the flat and were the applicant's property.

14. PW3 was asked why he had used the words "we learnt" in his statement of the 5^th April, when in his evidence he had said "we saw". He explained that in Chinese the character he had used could mean "saw" or "as told by others". This was left to the jury who were better qualified to comment on and make up their minds about it. It was put to him that in his statement he had used the Chinese character for "learnt" when being asked if he had seen the finding of the dangerous drugs on the applicant to which he had replied that he did not pay attention to details as two of his other colleagues were responsible for him. These too was left to the jury, they being better qualified to comment upon Chinese words and characters.

15. PW4 said that when he knocked on the door of the front portion and called out "Police. Open door", he heard DPC1727 (PW2) say "open the door". PW2 had not said this in his evidence and again it was a matter which was left to the jury to make what they would of it. Also the witness said that while he was knocking on the door PW2 had used the walkie-talkie to report to their superior officer, something that was not to be found in the evidence of PW2.

16. PW4 agreed that there was nothing in his statement about obtaining instructions to force the door. He explained that his superior had already given him this instruction. He agreed that DPC1727 did not take part in breaking down the door but had said in his evidence in chief that he did and that he did also use his walkie-talkie.

17. After mentioning the medical evidence about the injury to which we have referred and pointing out that it could have been caused on the 4^th April or after the 4^th April or before that date, he went on:

"Let me once again repeat what I said to you about the defendant's evidence. The defendant was not obliged to give evidence. He was not obliged to call any witness. He does not have to prove his innocence. He does not, in fact, have to prove anything. He chose to give evidence. He has given you his version of events and you must take what he say into account when considering the issue of fact that you have to decide. It is for you to decide whether you believe the defendant and what weight, if any, you give to the defendant's evidence and, indeed, to Mr. Tang's. And - this is most important - you must always remember that even if you were to decide that you did not believe what the defendant has told you, that would not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge he faces."

18. He had already brought to the jury's attention the various inconsistencies and discrepancies in the prosecution evidence, and had dealt fully with the defence version. His last direction to the jury was in the circumstances couched in terms which could in no way be termed as misleading the jury in any manner or as being unfair to the applicant.

19. The fact that the jury brought in their verdict in 70 minutes does not mean that they did not consider the issues before them which quite clearly on the evidence were not many or complex. Those were issues of fact and the case turned on the credibility which they placed on the witnesses. They had clear directions on those matters and we see no substance in this argument.

20. We see no reason to think that the conviction was in any way unsafe or unsatisfactory. The application is dismissed.

Representation:

Mr. Derek Pan, SADPP DPP / Respondent

Applicant in Person: Yee Chung-man