The Queen v. Fong Kwok Hung

CACC000135/1988

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Coram: Fuad, V.-P, , Kemmpster & Penlington, JJ.A.

Date of Hearing: 31 March 1989

Date of Judgment: 31 March 1989

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J U D G M E N T

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Fuad, V.-P (giving the judgment of the Court):

1. Fong Kwok Hung ("the Applicant") was convicted on 15 March 1988 by Judge Longley in the District Court of the offence of possessing dangerous drugs for the purpose of unlawful trafficking. On the same say he was sentenced to 7 years imprisonment. He now seeks leave to appeal against that conviction.

2. The case for the prosecution was based entirely upon the evidence of police officers from the Narcotics Bureau. A detective sergeant (PW2) told the Court that on 6 November 1987, 4 days before the commission of the alleged offence, an informer led him to a place near an abandoned stone hut near the Shek O Road Lookout. He found there hidden a yellow plastic bag covered with grass and soil. There were two transparent bags in the yellow bag which looked as if they contained drugs. He reburied the package in the same spot and the place was continuously watched by shifts of police officers.

3. At about 9.30 a.m. on 10 November 1987 a DPC (PW3) who was keeping watch on the hillside on the opposite side of the road to the Shek O Road Lookout saw a black car stop at the lay-by next to the Lookout it had come from the direction of Shek O. A man, described by the witness as being "rather young", got out of the front passenger seat of the car and walked towards a gap in the fence which led down to the stone hut. When this man reached the gap in the fence, the car drove off. The police officer contacted his colleagues who were on surveillance duty with him on his radio.

4. The detective sergeant (PW2) was one of the officers who received the radio message. He immediately drove his car near a quarry, south of the Lookout. He saw a black car stationary at a lay-by. He went up to the man sitting in the driver's seat. The man produced a driving licence in the name of Fong Kwok Hung (the Applicant's name).

5. Two other DPCs who were keeping watch also gave evidence. One of them (PW4) testified that he saw the Applicant walking down the path towards the stone but holding a pair of gloves in his hands. The Applicant, who by now had put on the gloves, squatted down and began to remove the grass and soil covering the spot where the suspected drugs lay buried. PW4 asked the Applicant what he was doing and the Applicant replied that he was "having a bowel movement". The witness noticed that the Applicant had not undone or lowered his trousers and had no toilet tissues with him.

6. PW4 went on to say that the Applicant produced an identity card in the name of Fong Kam Tim but later signed an entry in the officer's note-book with the name gong Kwok Hung. The other DPC (PW7) confirmed much of this evidence.

7. It is common ground that Fong Kwok Hung is the Applicant's real name and that Fong Kam Tim is the name of one of his brothers.

8. The Applicant was arrested. He was interviewed under caution by PW4 the same afternoon at the Narcotics Bureau and the DPC's questions and the Applicant's answers were recorded. A woman DPC was present. The Applicant, in his answers, said that he had gone to "the hole in the ground" to "take back the white powder". He himself had put it there, about a week previously He had done this alone. His elder brother Fong Kam Tim did not know that he was going to "take back the white powder".

9. On the following day the Applicant was formally charged and cautioned by a Detective Senior Inspector and he is recorded to have said: "The white powder is mine. It has nothing to do with my elder brother Fong Kam Tim."

10. The admissibility of these damning statements was challenged and the judge held a voir dire, using the "alternative procedure?

11. In his Reasons for Verdict, the judge said that there was nothing in the evidence of the prosecution witnesses to give rise in his mind to any suspicion that anything improper had occurred prior to the taking of the statement on 10 November 1987. He had accepted their evidence that not inducement had been made to the Applicant to confess. The interview had been conducted by way of question and answer but there was nothing in the questioning either by reason of its length or other circumstance which could amount to pressure of such a nature as to sap the will of the Applicant and make him talk. He was satisfied that the document produced was an accurate record of the interview. In so far as the Applicant's words constituted an admission that he himself was in possession of the drugs in question he accepted that his answers were true.

12. As to the Applicant's answer to the charge on the following day, he accepted that it had also been written in circumstances free from any pressure. The Applicant had clearly been concerned both in what he had said then and during his interview the previous day, to exculpate his brother. In so far as his answer to the charge amounted to an admission of his own possession of the drugs in question, he accepted that it was true.

13. The Applicant did not give evidence on the general issue but he called another of his brothers to produce three photographs he had taken some considerable time before the Applicant was arrested. Two were of the Applicant and one of his brother Fong Kam Tim.

14. I interpolate here that upon analysis, the yellow plastic bag found in the hole near which, according to the prosecution case, the Applicant had been seen squatting, was found to contain 897.97 grammes of a mixture containing 86.11 grammes of salts of esters of morphine.

15. Earlier in his Reasons for Verdict the judge said that he was completely satisifed from all the circumstances of the observations of the eye-witnesses which included the fact that the Applicant had put on a pair of gloves, the position in which he was squatting, the fact he had no toilet tissue with him, the fact that he had taken no steps to remove his trousers and that his brother had driven away from the spot where he had let him down from the car, that the Applicant had no intention of vacating his bowels" but was there to retrieve the dangerous drugs. He was satisfied beyond reasonable doubt that the Applicant knew the drugs, were there, that they were dangerous drugs and that he was in possession of them. He would stress that he would have been so satisfied even if there had been no evidence of any statement under caution made by the Applicant.

16. The presumption that arose by law from his acceptance of the evidence, that the Applicant was in possession of the drugs for the purpose of trafficking had not been rebutted.

17. The judge went on to say that he had considered the question whether there was any possibility that, by reason, of the similarity between the Applicant and his brother Fong Kam Tim, that the man the police had arrested beside the stone hut was not the Applicant but his brother. Counsel for the Applicant, the judge pointed out, had very fairly stated that this aspect of the case did not form any part of his instructions. Counsel had not put to any Crown witness that they were mistaken in their identification, but had submitted that this was a matter for the Court, to consider. It had not been suggested by the Crown witnesses that there was not a striking similarity in appearance between the Applicant and his brother. He could see that from the photographs produced by the defence. It did appear to him, however, from those photographs (and he noted that he had not had the benefit of seeing Fong Kam Tim in person) that Fong Kam Tim looked older than the Applicant. PW4 had testified that the no possibility of confusion between the brothers as he had been continuously responsible for guarding the Applicant and another police office was responsible for guarding the brother. PW7 had said that although the brothers were very similar there was no possibility of confusion because they were wearing different clothes. The judge expressed his satisfaction that no possibility of such confusion between the men had arisen.

18. The Applicant's Grounds of Appeal state that the issue of identification was never properly proved in evidence because the judge was denied the opportunity properly to assess the true identification of the person arrested at the scene because the prosecution had failed to adduce evidence at the trial that was relevant, namely a photograph of the man who was apprehended at the scene. Further or alternatively, it is averred in the Grounds of Appeal that the failure of the prosecution to produce into evidence at the trial and/or to disclose to the defence the photograph taken at the scene constituted a material irregularity in the course of the trial and was detrimental and grossly unfair to the proper conduct of the defence case.

19. In all these circumstances it is contended there were material irregularities in the course of the trial and the conviction was unsafe and unsatisfactory.

20. There was an application before us for leave to adduce additional evidence, that is to say, the photograph that was Mentioned in the Grounds of Appeal. It was supported by an affirmation made by the Applicant Fong Kwok Hung in which he explained the efforts he had to make to obtain a copy of this photograph and which concludes with a statement that he readily recognised that the man in the missing photograph was not himself.

21. The first prosecution witness was a police photographer who gave evidence that he had taken 17 photographs at the scene. He produced 16 of them in evidence. This was noticed by defence Counsel and he was asked about the 17th photograph. He said that it was a photograph of the man who had been arrested at the scene. The matter was taken no further. Defence counsel did not seek an order from the Court for the production of that photograph although he clearly had the opportunity to do so.

22. In our judgment, Counsel who was representing the prosecution at the trial was not bound to produce that photograph in evidence but we do think it would have been far better had the photograph been made available to the defence. However, we see nothing sinister in the failure of the prosecution to provide a copy of that photograph.

23. Returning to the question whether the prosecution should have produced the photograph, it seemed to us that since they had a confession followed by an admission after formal charge and caution from the Applicant and since they had evidence that the police officers concerned had the Applicant under observation all the time until the time he made his confessions it is not really surprising that felt it unnecessary to produce that photograph in evidence in evidence.

24. Applying the statutory criteria for the admission of fresh evidence on appeal we were quite satisfied that the conditions had not been met. The defence was fully aware that the photograph was available and could have called for it; the Applicant chose not to give evidence on the general issue, as I have mentioned, and moreover the, police officer (PW4) who had said that he had never lost sight of the Applicant during all the relevant time was not challenged in cross-examination.

25. In these circumstances, we did not see how the admission of this photograph could possibly afford any ground for allowing the appeal. Nor did we feel that its production was necessary or expedient in the interests of justice.

26. We do not think that the verdict, the reasons for which were given so fully and cogently by the trial judge, was either unsafe or unsatisfactory. In the circumstances, since no other grounds of appeal have been put forward, we consider that the Applicant was rightly convicted on overwhelming evidence. The application for leave to appeal against conviction must be refused.

Representation:

Mr. Robert Buchanan (Paul Kwong & Co.) for the Applicant

Mr. M. Hartmann (Crown Prosecutor) for the Crown