HKSAR v. Jagroop, Singh

HCMA 261/2024

[2024] HKCFI 3625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 261 OF 2024

(ON APPEAL FROM ESCC 559 OF 2024)

________________________

________________________

________________________

J U D G M E N T

________________________

1.The Appellant was convicted of two charges of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Both charges involved trafficking in herbal cannabis.

2.The Appellant was sentenced to 3 months’ imprisonment for Charge 1 and 9 months’ imprisonment for Charge 2, both charges to be served concurrently. The Appellant appeals against his conviction, but did not file any grounds of appeal.

Prosecution Case

3.As briefly summarised by the Respondent, at about 2030 hours on 29 November 2023, the arresting officer, PC 19459 (PW1) and the exhibit officer, PC 18570 (PW2) conducted patrol at Java Road, North Point. PW1 saw the Appellant coming down from a building at No. 82 Java Road. The Appellant was looking around suspiciously. Suspecting that he had dangerous drugs, PW1 intercepted him. PW1 was wearing plain clothes and produced his warrant card to the Appellant.

4.On Charge 1 of trafficking in a dangerous drug, it was found on the Appellant’s person. After escorting the Appellant to the police vehicle, PW1 searched the Appellant. From the Appellant’s right pocket jacket, PW1 found 4 packets of suspected dangerous drugs, later known to be 22.7 grammes of herbal cannabis in total. (Exhibit P2 - P5). PW1 also found from the Appellant $5,520 cash, two mobile phones, and one white key card (P20). PW1 then arrested the Appellant.

5.On Charge 2, trafficking in a dangerous drug found at the Appellant’s home. PW1 asked the Appellant about the white key card (P20). The Appellant replied that he lived at 82 Java Road. He consented to a home search by both police officers at Room 4, 4^th floor, 82 Java Road. The police then escorted the Appellant to Room 4 and entered the room with the Appellant’s key card.

6.During the home search, PW2 found a blue bag on the washing basin of the bathroom. The bag contained 4 packets of herbal cannabis (P10 - P13). Altogether, 239.3 grammes of herbal cannabis were found. There were also a digital scale (P14) and 20 transparent re-sealable plastic bags (P15) in Room 4.

Defence Case

7.The Appellant did not testify nor call any defence witness. But with no objection from the prosecution, the Appellant produced a defence exhibit D1, which was an agreement titled “Agreement on Administering and Delivery of Humanitarian Assistance”, signed by the Appellant with the International Social Service, the agreement provided the Appellant’s home address as Room C, 6^th floor, No.61 Prince Edward Road West, Prince Edward, Yau Tsim Mong, with the tenancy term from 10 December 2023 to 9 December 2025. This address was different from the subject premises under Charge 2.

8.By cross-examination, Defence elicited evidence from PW1 that, in fact, he had obtained a search warrant for the entire 4^th floor of 82 Java Road in the morning of the material day before they intercepted the Appellant. The search warrant, however, was never mentioned in PW1’s notebook, witness statement, or evidence-in-chief.

9.The Defence also pointed out that PW2 did not know about this warrant, and PW1 never showed it to him. Therefore, Defence submitted that both witnesses were incredible.

Verdict

10.The Magistrate rejected Defence’s criticisms of PW1’s credibility. The Magistrate accepted PW1’s explanation that he did not mention the search warrant because he had forgotten about it. He did not have to execute it at all because, upon PW1’s enquiry, the Appellant already identified Room 4 as his address and consented to the home search. The key card to Room 4 was also found on the Appellant’s person, with which police entered Room 4.

11.The Magistrate agreed that it would have been wholly unnecessary for PW1 to have produced a search warrant to show the Defendant or to execute the warrant.

12.Defence also complained that PW1 did not caution the Appellant. The Magistrate accepted PW1’s explanation that he did not caution the Appellant in English because he only knows simple English, and he would have to record the things the Defendant said in response to the caution.

13.The Magistrate also held that just because the Agreement (D1) provided a different address, that does not mean the Appellant could not be in control of Room 4 under Charge 2 at the same time.

14.The Appellant had the key card to Room 4. The Appellant also informed the police that they could enter Room 4 with the key card, and as also shown in the photos, the subject premises were in a subdivided flat. It was the Appellant who showed the police the way to Room 4 out of the many rooms in the flat. It was also the Appellant who “authorised and consented” to the home search.

15.The Magistrate also noted that the drugs in Room 4 were not concealed in any way, it was simply inside a blue cooler bag placed on top of a hand-wash basin in the toilet of the room. Coupled with the Appellant’s control of the premises, the Magistrate held that the Appellant knew about the drugs.

16.In view of the quantity of the drugs and other items seized from Room 4, including the digital scale and transparent re-sealable plastic bag, the Magistrate held that the Appellant possessed the drugs for trafficking purposes, therefore, convicted the Appellant on both charges.

Grounds of Appeal

17.The Appellant filed an appeal against conviction but did not file any grounds in support.

Respondent’s Reply

18.The Magistrate had considered PW1’s credibility and Defence’s criticisms. Just because PW1 did not mention the search warrant in his notebook and statement does not make him dishonest.

19.The Appellant’s possession of the key card to Room 4, his conduct of guiding the police to Room 4, out of the many rooms in the subdivided flat and his consent to the home search, were all compelling indicators of his control of the premises.

20.Moreover, according to the Defence Exhibit D1, the tenancy period for the other address only began on 10 December 2023, which happened after the offence date on 25 November 2023.

21.So all in all, the Respondent invited the court to affirm the conviction and dismiss the appeal.

Consideration

22.In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. The judge must be satisfied that the Appellant’s guilt have been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.

23.This is a straight-forward stop and search case, where the crux was also on the credibility and reliability of prosecution witnesses, of which the Magistrate had the advantage of receiving witnesses’ evidence first-hand and had duly considered all the criticisms against the witnesses, particularly on the lack of record of the search warrant.

24.However, as explained by PW1, he found the key card from the Appellant and the Appellant had agreed to the home search, there was simply no need to execute the warrant.

25.As to the different address assumed by the agreement D1, not only it did not mean the Appellant could not have control over other premises, but also as mentioned by the Respondent, the term’s tenancy period as shown in D1 only started after the date of offence.

26.So, in this case, there was ample evidence for inferring trafficking, including the quantity of the drugs, the value, the possession of the digital scale, and the many re-sealable bags in this case.

27.Upon hearing on all the evidence before this court, this court is also satisfied that the Appellant’s guilt had been proven beyond reasonable doubt. Therefore, the appeal is dismissed and the conviction do stand.

28.There remains one further matter for this court to consider. For the present case, the Appellant was sentenced to 9 months’ imprisonment. But on the case of ESCC 2406/2023, the Appellant is sentenced to 3 months’ imprisonment.

29.In the circumstances, upon considering the totality principle, I consider that it is appropriate to order that out of that 3 months’ imprisonment in the case of ESCC 2406/2023, 1 month is to be served concurrent to the present case, ESCC 559/2024, that is HCMA 261/2024.

30.So, both appeals are dismissed accordingly. And for the total sentence, on this case, 9 months’ imprisonment. The other case, 3 months’ imprisonment, out of which 1 month is to be served concurrent to the other case.

Mr Ma Man-hon Michael, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person