HKSAR v. Rai Kamal

HCMA 386/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 386 OF 2016

(ON APPEAL FROM KCCC 1230 OF 2016)

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REASONS FOR JUDGMENT

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1.The appellant appeals against his conviction of two offences being for possession of apparatus fit and intended for the inhaling of dangerous drugs (Re-amended charge 1) and possession of a dangerous drug (Charge 2). He was sentenced to be detained in the Drug Addiction Treatment Centre.

2.At the hearing of the appeal I dismissed the appeal.  Below are my reasons. 

Prosecution case

3.The prosecution case was simply that the appellant was found by a police officer holding a bottle which was an apparatus used for inhaling methamphetamine (apparatus).  Upon search by the officer a cigarette packet containing a small quantity of methamphetamine hydrochloride was found in his trousers pocket. 

4.The prosecution evidence was that four uniform officers were on patrol at Chung King Mansions.  Whilst ascending the staircase from the 1^st to 2^nd floor PC13729 (PW1) saw the appellant on the 2^nd floor.  At that time PW1 saw that the appellant was holding out to his left front a glass bottle which was connected with one straw and one tube which contained some liquid (the apparatus) in his left hand at his shoulder level.  In his right hand he was holding a cigarette lighter.  He arrested the appellant for the re-amended charge 1.  

5.At that time the appellant was sitting in a circle together with two other persons namely a male and a female.

6.Upon a body search of the appellant, PW1 found in his left front trouser pocket a cigarette box containing the drugs ice which is the subject of charge 2.  

The Defence case

7.The appellant was legally represented at his trial.  He elected to give evidence and called no defence witnesses. 

8.The appellant denied he was in possession of the apparatus and drugs. He claimed that he had never seen the relevant exhibits, including the apparatus and drugs until the trial.  He denied he signed on the relevant tampered proof envelopes.

9.In the defence counsel’s closing submission, it was submitted that the police officer, PW1 had framed the appellant; the other police officer, PW2 had mistaken the appellant as the person who signed the tamper proof envelopes; and there was no independent fingerprint evidence supporting the prosecution case.

Issues at trial

10.The magistrate was well aware that the issue was the credibility of the police officers and consequently whether the appellant was in possession of the apparatus and the drugs as alleged. 

Grounds of appeal

11.In the appellant’s written submissions he repeated his defence raised at the trial.  He protested his innocence and submitted that if the apparatus and packet of drugs were found on his person the evidence given by the police officers should have been supported by a positive finding of his finger prints on those items.  There was a gap in the evidence led by the prosecution and the lack of finger print evidence assisted his case that the items were not found on him. 

The magistrate’s findings

12.The magistrate[1] accepted the evidence of the two police officers and rejected the evidence of the appellant.

13.She found the evidence of PW1 and PW2 being clear, cogent and compelling; unshaken under cross-examination; and consistent with each other in material aspects.  The apparatus and the packet of drugs were not subject to forensic examination.  She considered the issue of fingerprint evidence and found fingerprint examination on the packet of the drugs and the apparatus superfluous.

14.On rejecting the appellant’s evidence the magistrate gave fully explained reasons why she did so. 

15.She found material discrepancies in the appellant’s evidence in regard to the content of the white plastic bag that was hanging from the appellant’s arm.  She also rejected the appellant’s account that PW2 was mistaken that it was him that signed on the tamper proof envelope containing the drugs.  She was satisfied that PW2 had no chance to be mistaken as to the identity of the appellant as he and the other male and female found together with him at the podium at Chung King Mansions had also signed on the envelope back at the police station.

Discussion

16.The absence of the appellant’s fingerprints proves nothing either way.  Lunn JA (as he then was) giving the judgment of the Court of Appeal in HKSAR v Pham Thi Nga CACC224 of 2011 (unreported 16 July 2012) referred to the observations made by Power VP in their judgment to HKSAR v Law Wing Hong (CACC 169/1998; unreported, 11 November 1998) :

“ ... lack of fingerprint evidence is a neutral factor. Of course if fingerprint evidence is given and either implicates the accused or exonerates him by establishing that the fingerprints are those of some other person, then it can be evidence of very substantial importance. Where, however, there is no fingerprint evidence at all, it proves nothing either way.”

17.The magistrate gave a full and careful assessment to the evidence which had been given on both sides.  The prosecution’s case rested upon the credibility of the police officers evidence.  The magistrate had the advantage of seeing and hearing the police officers evidence.  The magistrate was fully justified in reaching the conclusion that she did, I can see no reason to undermine the magistrate’s findings.  

Conclusion

18.The convictions were neither unsafe nor unsatisfactory for these reasons I dismissed the appeal.

Ms Manna Wong, PP of the Department of Justice, for the respondent

The appellant appeared in person