HKSAR v. Khan, Zubair

HCMA 71/2025

[2026] HKCFI 5145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 71 OF 2025

(ON APPEAL FROM WKCC 3609/2024)

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BETWEEN

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J U D G M E N T

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1.The appellant was convicted after trial of one count of possession of apparatus fit and intended for the inhalation of dangerous drug[1]. He was sentenced to 3 months’ imprisonment, which was ordered to run consecutively to the 12 months’ imprisonment sentence imposed on the appellant on 9 January 2025 in respect of WKCC 1453/2024.

2.The appellant now appeals against conviction and sentence.

Prosecution case

3.The prosecution called five witnesses.  PW1 testified that at about 11:00 a.m. on 20 May 2024, he and his colleagues were on patrol in uniform outside Exit A3, MTR Cheung Sha Wan Station.  He saw the appellant sitting on the staircase, looking around and appearing unfocused, holding a black plastic bag and carrying a black sling bag.

4.PW1 intercepted the appellant who showed his identity card as requested.  As the staircase was crowded, PW1 brought the appellant to the surface near Exit A3 and searched him there.  Inside the black plastic bag, PW1 found a transparent empty glass smoking tube, a transparent glass pot with an opening and some liquid inside and with a tube containing burnt materials, six straws, and a lighter.  These items were seized.  Subsequently, the setup with the smoking tube and the pot with tube were examined by Government Chemist.  It was found that it could be used as an inhaling device and the device was found to contain a total of 0.04 grammes of a solid containing cocaine.

5.At 11:10 a.m. PW1 arrested the appellant.  Under caution, the appellant had nothing to say.

6.The seized exhibits were then sealed in the presence of PW2 at Cheung Sha Wan Police Station.  PW2 to PW5 gave evidence relating to the chain of exhibits and that the exhibits had not been tampered with.

Defence case

7.The appellant elected not to give evidence and did not call defence witness. 

8.In his closing submissions, the appellant submitted that PW1’s evidence was not credible or reliable because, if the station was crowded as alleged, he could not have been sitting on the staircase.  He also argued that the body search should have been conducted inside the station.  He further complained that no CCTV footage at the scene had been seized.

Magistrate’s findings

9.The magistrate rejected the challenge to PW1’s credibility, holding that it was plausible for the appellant to have been sitting on the staircase even if the station was crowded.  He also rejected the criticism about the location of the body search because PW1 had already explained that the staircase was crowded[2].

10.The magistrate held that the absence of CCTV footage did not undermine PW1’s testimony as PW1 was the officer who intercepted the appellant and found the exhibits on him[3].

11.Having considered all prosecution witnesses’ evidence, the magistrate found that they gave evidence directly and sincerely, that their evidence was reasonable, consistent and mutually supportive, and that they were honest and reliable witnesses.  He accepted their evidence[4]. 

12.The magistrate found that at the material time and location, the appellant had in his possession the exhibits which constituted the apparatus described in the charge and fit and intended for the inhalation of a dangerous drug.  He further found that the appellant must have known this. The prosecution therefore proved the charge and the appellant was convicted accordingly[5]. 

Mitigation

13.The appellant has 16 previous conviction records, 3 relate to dangerous drugs.  Before sentence, a Drug Addiction Treatment Centre (“DATC”) report was called for.  The report stated that the appellant was not a drug addict. 

14.In mitigation, the appellant urged the court to pass a lenient sentence as he had to support his daughter and brother.

Reasons for sentence

15.Having considered the appellant’s background, his previous convictions and the DATC report and the circumstances of the case, the magistrate adopted a starting point of 3 months’ imprisonment and, finding no mitigating factor, imposed 3 months’ imprisonment.  He further ordered the sentence to run totally consecutively to the 12 months’ imprisonment sentence in WKCC 1453/2024 as the offences were unrelated, different in nature, and the total sentence was not excessive[6]. 

Grounds of appeal

16.In the notice of appeal against conviction and sentence, the appellant relied on the general grounds therein.  At the appeal hearing, the appellant repeated the criticisms made during closing submissions. 

Consideration

17.The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  The judge must be satisfied that the appellant’s guilt has been proved 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.  It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand.  Hence, it must exercise caution when considering findings of facts based on oral testimony.  Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.  On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

18.On conviction, I agree with the respondent that this is a simple and straightforward case.  The magistrate had given himself the proper directions before he considered the credibility and reliability of prosecution witnesses.  He had also considered the appellant’s criticisms on the credibility and reliability of the witnesses.  Having gone through the magistrate’s analysis, I agree with the magistrate’s conclusion that the evidence of all prosecution witnesses was simple, direct, reasonable, consistent and supportive of each other.  The magistrate was entitled to find them honest and reliable and accept their evidence.  Based on their evidence, the prosecution has proved beyond reasonable doubt the charge against the appellant. 

19.On sentence, the appellant had 3 previous convictions relating to dangerous drugs.  It shows that the previous punishment of fine had failed to deter him.  As he was not recommended to be admitted to DATC, the only appropriate sentencing option would be immediate custodial sentence.  Given the appellant was convicted after trial, he was not entitled to the usual 1/3 discount upon guilty plea.  There was no other mitigating factor justifying reduction in sentence.  In my view, the sentence of 3 months’ imprisonment was not manifestly excessive or wrong in principle.

20.At the time of sentence, the appellant was serving a 12-month sentence for a theft case (WKCC 1453/2024).  Given the present offence is different in nature and unrelated to that theft case, the magistrate was correct to order the present sentence to run wholly consecutively to the 12-month sentence of WKCC 1453/2024.

21.In view of the above, the appellant’s appeal against conviction and sentence is dismissed. 

Ms Poon Oi Lin, Irene, SPP, of Department of Justice, for the respondent

The appellant appeared in person