HKSAR v. Chan Kwok Chung

HCMA000058/2002

HCMA 58/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 58 OF 2002

(ON APPEAL FROM NORTH KOWLOON MAGISTRACY
CASE NO. NKCC 5217/2001)

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Coram: Hon Jackson J in Court

Date of Hearing: 27 March 2002

Date of Judgment: 11 April 2002

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J U D G M E N T

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1.On 5 December 2001 the appellant was convicted, after trial in the North Kowloon Magistrates Court, of an offence of trafficking in a dangerous drug. He was placed on probation for 12 months. He appeals against his conviction.

2.The Magistrate's findings concerning the appellant (who was aged 15 at the time of his conviction) and his co-defendants occupy some 18 pages. Suffice it to say, for present purposes, that the appellant was convicted of trafficking in 484 tablets of the drug known as 'ecstasy'.

3.What the Magistrate had to say about the case concerning this appellant (who was D2 at trial), was as follows:-

"It was not disputed by D2 that on the day in question he accompanied D1 to the Mong Kok MTR station and that money was handed by PW1 to D1. It was not disputed that $500 of that money was handed to D2. D2 also did not dispute that 2 men later appeared at the MTR station and one of those males handed a plastic package to D1 who in turn handed the package to PW1. On the evidence I was sure that this package contained the drugs the subject of the charge.

D2 gave evidence to the effect that he had no idea what was in the package and was merely accompanying D1 to Mong Kok for a game of snooker.

D2 had known D1 for about a year. He did not know what D1 did for a living.

D2 said that D1 had agreed to lend him money to play snooker and had told him that they were to go via Mong Kok where D1's friend would give D1 some money. When they got there D1 said that he was to meet his friend at the Mong Kok MTR station.

The evidence of PW1 was that the original meeting place was the MTR station at Tsmi Sha Tsui but this was changed at late notice. PW1 said that he arrived with a team of 7 officers at Tsim Sha Tsui police station at 5.20 pm on the 23rd August. He then received a telephone call telling him that the meeting place had been changed to a platform at Mong Kok MTR station.

In his evidence D2 said that he was with D1 for an hour before leaving the Amusement Games Centre in Sham Shui Po prior to going to Mong Kok. D2 said that after 5.00pm D1 told him to go with him to Mong Kok to play snooker. D1 did not have with him a mobile phone, he used D2's.

When D1 and D2 arrived at the MTR they did not simply wait at the concourse but had to go through the turnstyle to get access to the platform below. D2 said he used his octopus card to gain access through the turnstyle.

It was D2 who enquired of PW1 if he was 'Ah Kit'. In evidence he said he did this on the instructions of D1. Since D1 had told D2 that he was meeting a "friend" this method of approaching the "friend" would appear somewht unusual. PW1 counted out the money in front of both D1 and D2. They remained at the platform and there was discussion about a change of meeting place. PW1 refused to follow them at first. It was then mentioned that they go to the upstairs ticket office and wait there.

When they got to the ticket office D1 and D2 made phone calls in turns using D2's mobile phone. At the concourse PW1 handed the money over to D1 and D1 handed $500 of that money to D2 who put the money into his wallet.

D1, D2 and PW1 waited at the concourse for some time before D3 and D4 appeared. The evidence of PW1 that the period was half an hour was not challenged.

When D3 and D4 appeared the handing over of the drugs took place right in front of D2.

Having considered all the evidence in relation to D2 and notwithstanding his clear record, I did not believe his evidence to the effect that he simply accompanied D1 to the MTR for the purpose of D1 getting some money from a friend.

Looking at all the circumstances I was irresistibly drawn to the conclusion that D2 knew exactly what was going on and participated with D1 in the commission of the offence."

4.The ground of appeal relied upon by Mr Mc Gowan, on behalf of the appellant, was this:-

"The Learned Magistrate was in error when he found there was an irresistible inference that the Applicant had the necessary knowledge about D1's Drug Trafficking activities."

In argument Mr Mc Gowan suggested that:-

"Whilst some of the circumstances are, with the wisdom of mature adult hindsight, certainly suspicious, they are not such as to give rise to one inference only that being the inference drawn by the Magistrate."

5.In response to the argument put forward by Mr Mc Gowan during this appeal Mr Cheung drew my attention to the precise nature of the evidence which was before the Magistrate and, having done so concluded that:-

(1) "The learned magistrate accepted the police witness' evidence. In fact, there was no dispute as to what happened. The only issue was knowledge."

and (2) "The circumstances of the meeting were unusual. The Appellant was present all along. Once the learned magistrate rejected the Appellant's evidence, it was open to him to draw the inference that the Appellant knew what was going on and participated in a joint enterprise."

6.Having taken time to consider these matters I conclude that the learned Magistrate was not in error in drawing the inference that he did draw adverse to the appellant, and that I respectfully agree with the submissions of Mr Cheung. This case was tried before an experienced Magistrate who had the benefit (which I do not have) of seeing and hearing the witnesses including the appellant. The point about the age of the appellant was clearly before him and he drew the inference which he did draw in that light.

7.Having done that and, given Mr Mc Gowan's apparent concession during this appeal that had the appellant been older he would probably have had no complaint concerning the inference drawn by the Magistrate, it follows that this appeal must fail.

Representation:

Mr W S Cheung, SADPP of Department of Justice, for the Respondent

Mr James McGowan, instructed by M/s Wong Packwood & Co, for the Appellant