HKSAR v. Obiegbu Prince Jerry Jay

HCMA000567/2000

HCMA567/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.567 OF 2000

(ON APPEAL FROM SPCC 746 OF 2000)

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Coram: Hon Tong J in Court

Dates of Hearing: 13 and 14 October 2000

Date of Judgment: 14 October 2000

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J U D G M E N T

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1. The appellant was charged with the offence of trafficking in a dangerous drug, namely, cannabis resin, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134. The appellant pleaded not guilty and was convicted by the learned magistrate after trial. The appellant sought to appeal against the conviction and sentence.

2. In his letter to the court, the appellant had raised a number of complaints regarding the conviction. These were mainly issues which had been raised by his counsel in the final submission. After the trial, the magistrate had immediately given his oral decision after listening to the final submissions. The following is a transcript record of the oral judgment :

"All right, Defendant, will you stand? You have a clear record. In law, this has two significance - firstly, because you have a clear record, therefore it is less likely that you have been lying; secondly, because you are a person of previous good character, therefore, it is less likely that you have committed the offence.

You are a defendant. You are not required to prove your innocence. In fact, you are not required to prove anything at all. It is always the duty of the prosecution to prove the case beyond all reasonable doubt.

Having seen and heard all the witnesses, I am satisfied that the first prosecution witness and the second prosecution witness are honest witnesses. I accept their evidence and I reject your evidence.

Taking all the evidence before me into consideration, I am satisfied that you were there on the footbridge carrying the paper bag with the blocks of cannabis resin in your right hand. I am satisfied that you know or you knew what was inside the bag. Taking into consideration the quantities of cannabis resin and the circumstances into consideration, I am satisfied that you had them for the purpose of unlawful trafficking. I find you guilty as charged."

3. I noted that the judgment made no reference at all to the matters raised by defence counsel in the final submission. But one must not criticise the learned magistrate here as he was not obliged to give a full judgment at this stage. However, when the learned magistrate prepared the Statement of Findings, apart from a short summary of the prosecution evidence, he simply repeated what he said in his oral decision. He wrote in the paragraph under "Conclusion" that :

"Having seen and heard all the witnesses, I was satisfied that P.C.46065 and P.C.33554 were honest witnesses. I accepted their evidence and rejected the Appellant's evidence. Taking all the evidence before me into consideration, I was satisfied that the Appellant was there on the footbridge carrying the paper bag in his right hand. I was also satisfied that the Appellant knew that inside the paper bag were blocks of cannabis resin. Taking into consideration the quantity of cannabis resin I was satisfied that the Appellant was not in possession of it for his own consumption, he had it for the purpose of dealing with it. I found the Appellant guilty of the offence."

4. In effect, the learned magistrate had given no reasons, based on an analysis of the evidence, in support of the judgment. This raised a concern as to whether the learned magistrate had given any or any sufficient consideration to the issues raised in the trial. I also could not discern the magistrate's view about the discrepancies in the evidence, if any. As Litton JA (as he then was) stated in the case of The Queen v. Ng Wing Ming [1995] 1 HKCLR 64, where a case turned upon the victim's word against the accused's version, the inherent probabilities of the versions put forward by each witness was a more valuable test than the demeanour of the witnesses. Of course, this authority also recognised that in some cases demeanour alone might be the only guide, as a last resort, to the issue of credibility. But I doubt if the present case belonged to that category of cases.

5. Defence counsel, at the final submission, had raised a number of rather important legal and evidential points but none of them was dealt with the oral decision or in the Statement of Findings. Some of the matters raised were, for example, the statutory presumption of knowledge, the opportunity to inspect the contents of the bag and the inference of trafficking. The authority of the Court of Final Appeal in Chan Chuen Ho [1992] HKLRD 203 was specifically referred to by counsel. This judgment stated, inter alia, that not all cases of possession of drugs, even in larger quantities, would automatically constitute trafficking. In this regard, defence counsel had invited the learned magistrate to note that the house search and the bank account inquiry had yielded nothing relevant to support an inference of trafficking. These questions were relevant and material and they would deserve some consideration by the learned magistrate.

6. Had the learned magistrate considered these matters, he might well come to the same conclusion that the appellant was in possession of the drug for the purpose of trafficking. But there was no such consideration here. In the end, despite a strong submission to the contrary by counsel for the respondent, I could not say that the learned magistrate had made a rational and reasoned decision here and therefore I found that the conviction was unsafe and unsatisfactory.

7. In the premises, I had allowed the appeal and quashed the conviction. The sentence would also be set aside.

However, having heard the parties further, I found that in the interest of justice, a retrial would be in order. Therefore, I had allowed the respondent's application for retrial. The case shall be returned to the magistracy for a new trial before another magistrate.

Representation:

Miss M.Y. Lily Ho, SGC for DPP, for the Respondent

Appellant in person, present