HKSAR v. Ng Kwok Fai

HCMA 726/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 726 OF 2010

(ON APPEAL FROM ESCC 3273/2010)

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Before: Hon Mackintosh J in Court

Date of Hearing: 8 December 2010

Date of Judgment: 8 December 2010

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J U D G M E N T

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1.This is an appeal against the conviction by a Magistrate, of the appellant on 31 August 2010 for trafficking in a dangerous drug, namely a small quantity of heroin hydrochloride. The appellant was represented by counsel at trial but he has appeared in person before me. No formal grounds of appeal have been submitted.

2.In a nutshell, the appellant was alleged to have sold and delivered a small packet of heroin to an undercover police officer (“PW1”) on 14 June 2010 for $150.  The officer was working at part of an ongoing undercover operation outside the Violet Peel Methadone Clinic in Wanchai.  The appellant was not immediately arrested.  PW1 passed the packet of drugs to PW2, another officer and it was thereafter transmitted to the government chemist who found it to contain 0.07 gramme of heroin hydrochloride.

3.Two days after the sale to PW1, the operation went overt and police, including PW1 and PW2 arrested other males from a group of about 10 at or near the Violet Peel Methadone Clinic.  PW1 recognised the appellant as the man to whom he had sold the package two days before, and he pointed him out to PW2 who arrested him.  Upon arrest and caution, the appellant said he could not remember whether any heroin had been sold to the undercover officer.

4.In an interview which took place shortly afterwards he was alleged to have made admissions about trafficking though the Magistrate, having admitted the interview after a voir dire, was careful to limit his consideration of the admissions only to the case in hand.

5.The appellant admitted that he was in the place where the alleged transaction had taken place at the material time; but again, he said he could not remember whether any heroin had been sold to the undercover officer.  In effect, he was saying that he could not identify any sale to this undercover officer or any other transaction that might have taken place.

6.At the trial, the evidence on the general issue comprised PW1, PW2 and the appellant himself.  PW2 and the appellant also gave evidence on the special issue relating to the admissibility of the interview record.

7.The Magistrate, in a full Statement of Findings, has given a detailed account of the evidence, which I do not intend to traverse here.  It is enough to say that PW1’s account was that he was approached by the appellant at about 7:00 pm on 14 June.  He gave a detailed description of the appellant, who he said offered to sell him a packet of heroin for $150.  He had a clear and unobstructed view of the appellant’s face.  At the time there was street lighting.  Their face to face dealings lasted for a minute or so and the officer handed over $150.  The appellant then spat out a small packet, which he gave to the undercover officer.  I might interpose to say it is the experience of this court over many years that concealment of small packets of heroin in the mouth is very common.  Although it seems, at one point in this case to have been surprising to defence counsel, it should not have been.

8.The whole exchange between PW1 and the appellant as the vendor of the packet was not fleeting in nature.  It was long enough for PW1 to absorb the facial features of the appellant.

9.The packet purchased by PW1 was transmitted through PW2 to the government chemist who analysed the contents as those in the charge, the small quantity of dangerous drugs to which I have already referred.

10.There was a question of whether there was also a small piece of plastic wrapper spat out with the packet, which seemed to have disappeared.  But the Magistrate rightly found this to be irrelevant to the issues in this case.  It was something he could safely disregard.

11.Although the appellant has submitted no formal grounds of appeal, he complains today that his signature did not appear on the tamper proof envelope into which the drugs were inserted before being sent to the government chemist.  This, as I understand it, is correct.  In the end, it was a question of whether the Magistrate could rely on PW2’s evidence that he had put the packet in question into the envelope, which was crucial.  The number on the tamper proof envelope matched the number on the government laboratory’s package in Exh 3:  I have examined it today.  It is the number referred to in the government chemist certificate Exh 4.  So again, we come back to this: like so many of these issues, it was an issue of credibility for the Magistrate to determine.

12.The appellant’s evidence on the general issue was to the effect that he had been at the Violet Peel Methadone Clinic at about 7:00 pm on 14 June, because he was being treated there, and he had chatted with friends.  However, he had never met PW1 on that day, and had done no drug transaction.

13.The main issues aside simply from the credibility of the witnesses were these:

(1)    Did PW1 correctly identify the appellant as the person who had sold drugs to him on 14 June when he saw him amongst the group of males on 16 June?

(2)    Had the prosecution proved that the interview record, although it did not amount to the admission of the offence charged, was voluntary in nature and therefore admissible?

14.Dealing first the issue of admissibility.

15.It should be noted that the appellant upon his arrest and in the interview, as I have already remarked, denied that he had been involved in the sale, which was subject to the charge, but he did admit being in vicinity at the material time.  So his response was in the nature a mixed statement.  He challenged its admissibility on the footing that at the police station, he had been pushed about and had been promised bail if he co‑operated.  PW2 had concocted the answers recorded in the record and the appellant had copied the declarations incorporated into the record.

16.The Magistrate considered the evidence of PW2 both as to the events of 14 June when he handled the packet in question, and 16 June that is the post-arrest interview.  He judged his credibility having seen him and heard him in the witness box, testifying under cross-examination in the context of the appellant’s own evidence.  Judging this witness, as with all the witnesses, including the appellant himself and the credibility of those witnesses, was the Magistrate’s job.

17.In my judgment, there is no reason to think that this extremely experienced Magistrate misapprehended his judgment in this respect.  He disbelieved the appellant’s evidence on the voir dire giving a specific reasons for so doing.  I am not going to set it out in full but, in respect of the claim by the appellant that he was illiterate, he noted his ability to copy the declarations from a sheet at one part of his evidence, whereas in another part of his evidence he claimed that the declarations were dictated to him.

18.Similarly, there is no basis to conclude the Magistrate may have misapprehended his consideration of the credibility of PW1 and PW2 who he believed as honest and true witnesses.

19.The next issue is whether the appellant had been properly identified on 16 June as the seller of the drugs on 14 June.  He had been pointed out in a group of around 10 men by PW1, a procedure in which was more in the nature of a multiparty confrontation than a formal identification parade.  The Magistrate did not expressly refer to the Turnbull guidelines or to the special need for caution in identification cases.  He said he considered the case as a recognition case.  In reality, it was simply a case of identification.

20.This is a matter which I raised with Miss Hermina Ng, for the Respondent, this morning during submissions; and between this morning’s hearing and this afternoon, Miss Ng has done a little bit more research and has been able to produce direct authority for her immediate response to what I said this morning in the form of a case HKSAR v Nguyen Lam, CACC 496/1999, in which the District Judge had similarly failed to make reference to the Turnbull guidelines or to the special need for caution.

21.The Court of Appeal indicated that the judge should have warned himself about the special need for caution before convicting the applicant and the reasons for that caution; but as a professional judge sitting in the District Court, he will be expected to know law in this respect and there is no requirement for the judge to refer to the Turnbull case by name, provided that it is clear from the context of the reasons of verdict, that all appropriate caution has been exercised by the judge, and that the evidence about the circumstances in which the identification was made have been closely examined by him.

22.There is no magic to the words “Turnbull guidelines” or the phrase “special need for caution” in the context of identification cases.  It is not so much a question of whether the Magistrate has used the words but how he has approached his task of evaluating the identification evidence to determine whether he has applied the proper standards to the consideration of such identification evidence given the risks and dangers of mistaken the identification with which we are all familiar.

23.What could be seen in this case is that the Magistrate did evaluate the identification evidence with care.  He knew the length of time the two men were face to face during the transaction; he noted the good quality of lighting.  He remarked that this was not a fleeting glimpse and neither was it a casual observation by PW1 of the other man.  He was a police officer engaging in a drug deal.  As an undercover officer, of course, he would take care to observe the facial features of the man he was dealing with.  Furthermore, it is to be noted that the appellant admits he was present at the place and time in question.  That is supportive of the officer; and once the admissions of the appellant are taken into the account, they too become supportive.  Although the appellant did not admit the dealing which is the subject to this charge, he did admit he was engaging in drug trafficking at that place.  I repeat the Magistrate disregarded that the appellant’s admissions in respect of any other drug trafficking for any other purpose than this.  The Magistrate also noted the gap between the original sighting on 14 June and the subsequent identification on 16 June was only 2 days, not so lengthy as to cause the memory to dim.  The point here is clear that the Magistrate applied the particular need of caution which is appropriate, even if he did not set out the matter in terms and phrases familiar to lawyers in so doing.  I am satisfied that he is not to be faulted in this respect.

24.This appeal is a rehearing on the evidence before the Magistrate.  I am mindful of the approach taken to these cases laid down by Bokhary PJ in Chou Shih Bin in [2005] 1 HKLRD 838 which he acknowledged the nature of Magistracy appeals with great particularity.  This approach has become the standard for the consideration of these appeals, in particular that they are appeals by way of rehearing, although the appeal court does not have the advantages that the Magistrate had of seeing and hearing the witnesses at first instance.

25.I come back to the appellant’s complaints.  Although there were no perfected grounds of appeal or written arguments, the thrust of his complaint about his conviction, as he has articulated it today, is about the credibility of PW1 and PW2.

26.He complains that another man arrested at the same time as himself and was facing the same allegations with more or less similar evidence but was acquitted by another Magistrate, because he was able, unlike the appellant, to pay for the services of a lawyer.  It may be understandable for a layman to take this stance but of course the result of another trial, in front of another court, has no impact on this.  I appreciate the appellant said that the witnesses were the same.  But nevertheless, I am satisfied that is the position.  The appellant’s case which has to be judged on its own merits.

27.The appellant insists that PW1 and PW2 ought not to have been believed on the general issue or, so far as PW2 was concerned, on the special issue.  He gives no specific reason for this other than to maintain that he had done nothing wrong.

28.So far as the special issue is concerned, the Magistrate gave particular reasons for disbelieving the appellant’s own account.  It was, in my judgment, open to the Magistrate to reach the conclusions that he did on the credibility of PW1 and PW2 who he believed.

29.The appellant points out that when he was arrested no marked money or dangerous drugs were found in his possession or at his home.  This may be true but it is not itself a matter which significantly undermines the witnesses.

30.There is nothing unsafe about PW1’s evidence of identification supported as it is by the circumstances which I have described.  There is no basis whatsoever for this court to reject the evidence of PW2, which the Magistrate accepted, to the effect that the drugs in this transaction were passed to him by PW1 and then placed by him into a tamper proof envelope which was transmitted to the government chemist.  The appellant’s assertion today, that the dangerous drugs could have come from one of the other arrested persons on 16 June is simply that, an assertion: it carries no weight in the circumstances.

31.I am satisfied that this conviction is based on sound evidence which the Magistrate was entitled to accept and that there are no grounds to overturn the conviction.  The appeal against conviction must be dismissed.

32.It is appropriate in my judgment to add a postscript concerning sentence.  The appellant was sentenced to a term of 18 months’ imprisonment. This conviction was for trafficking in dangerous drugs outside the methadone clinic where addicts go to try to free themselves of their addiction.  To traffick in a place such as that is a very grave aggravation of the offence of trafficking in a dangerous drug.  In the circumstances, a starting point of not less than 2½ years’ imprisonment would have been appropriate; but more than that, I can see that this is his fourth conviction for trafficking in dangerous drugs.  The appellant has shown himself to be a persistent retailer in dangerous drugs.  He has not appealed against his sentence.  If he had done, I would have doubled it.  This appellant ought to have been sentenced to a term of 3 years’ imprisonment for this offence.  It is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to discourage them, particularly, where they commit such offences outside a methadone clinic.

Miss Hermina Ng, Public Prosecutor, for the Respondent

The Appellant, in person, present