R. v. Tsang Pui Lam

HCMA000904/1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 904 OF 1996

____________

____________

Coram : The Hon. Mr. Justice Wong in Court

Date of Hearing : 23 October 1996

Date of Delivery of Judgment : 23 October 1996

_______________

J U D G M E N T

_______________

1. The appellant was convicted after trial before a magistrate of one charge of possession of a dangerous drug and sentenced to one month's imprisonment. He appeals against conviction.

2. The prosecution case was that in the early hours of 2nd December 1995 two constables on patrol duty in the vicinity of Cooke Street and Walker Street, Hunghom intercepted and searched the appellant. From the right pocket of his trousers, the constables found a transparent plastic bag with 14 plastic straws containing 5.40 grammes of heroin hydrochloride, the subject of the charge. The appellant, in response to a caution, said: "the white powder is for my own consumption. I am several 10 years old, still you don't let me go. I am not admitting this time!"

3. The appellant gave evidence and his defence was a police frame up. Prior to his arrest, he had been asked by PW1, one of the arresting officers and PW3, a sergeant to supply them information on dangerous drugs. Both officers gave him their mobile telephone numbers for contact and the appellant was able to recite the numbers in court. This was not denied by the officers. There was a taped telephone conversation allegedly between PW1 and the appellant regarding the supply of 14 granules of dangerous drugs. PW1 denied in his evidence that he was the person speaking to the appellant. Having read the transcript, I am not prepared to accept that it was not PW1's voice. It has the ring of truth about the matter. At least, there must be a doubt whether PW1 was the other speaker and this doubt must be resolved in favour of the appellant. The magistrate, in addition to accepting the evidence of the police officers, relied, to a considerable extent, on the oral admission allegedly uttered by the appellant at the scene of his arrest. Under cross-examination, the officers admitted that although this admission was post recorded the appellant refused to sign it. Moreover, this post record was not produced at the trial. It further transpired that the appellant also refused to sign on the property bag which contained the 14 straws of dangerous drug. In regard to the oral admission, my attention was drawn to R. v. Wan Chik Wai Crim. App. No. 669 of 1993 in which Litton, J.A. (as he then was) questioned the legitimacy of the practice of adducing verbals without producing the post record.

4. In his evidence, the appellant told the magistrate that at the time in question he was chatting with the mahjong players at Chiu Kee Store situated at No. 9 Walker Street. The Sergeant who was PW3 at trial came in and asked him to go out and outside the store he saw several police officers including the two officers who said they arrested him. PW3 brought him to Cooke Street where he was asked for information. PW1 came up to him and said: "You son of a bitch. You were just asked to find out 10 odd granules of things, you have so many excuses, say no more, get on the vehicle." He was taken back to Hung Hom Police Station. Inside a room, PW3 came in and put a packet of something on the table and said it belonged to the appellant.

5. Had the magistrate analysed and evaluated the evidence properly and objectively, I am sure that he must have a doubt in his mind and acquit the appellant. There are so many unsatisfactory features in the evidence. In my view, the conviction cannot be regarded as safe and satisfactory. The appeal must therefore be allowed with the result that the conviction is quashed and the sentence set aside.

Representation:

Mr. Y. M. Liu, S.C.C. for the Crown.

Mr. Johnny J. H. Chan instructed by D.L.A. for the Appellant.