HKSAR v. Sze Wuen Yee

HCMA001007/1998

HCMA1007/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1007 OF 1998

(On appeal from SPC 5184 of 1998)

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Coram: Deputy Judge Lugar-Mawson in Court

Date of hearing: 7 January 1999

Date of judgment: 7 January 1999

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J U D G M E N T

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1. The Appellant, SZE Wuen-yee, appeals against his conviction on 3 August 1998, by Mr David Duggan, Principal Magistrate sitting at San Po Kong Magistracy, for an offence of possession of dangerous drugs, contrary to Section 8 of the Dangerous Drugs Ordinance. On 14 September 1998, after considering reports, Mr Duggan sentenced the Appellant to serve 15 months' imprisonment. The Appellant does not appeal his sentences.

2. At trial the Appellant was represented by a duty lawyer. He testified on his own behalf and called one witness in his defence.

3. In brief, the prosecution's case against the Appellant was that he was stopped by two police officers after arousing their suspicions. Upon search by one of them, the dangerous drugs in question were found in his trousers' pocket. Upon arrest and caution he asked for a chance and said the drug was for his own consumption. There was no challenge to the chain of evidence relating to the handling of the dangerous drugs, and upon analysis the drugs were found to be 20 packets of heroin, containing a mixture weighing a total of 7.42 grammes, which had 5.98 grammes of heroin in it.

4. When the Appellant gave evidence, he gave a different account of his apprehension by the police officers. In essence, his defence was that the police officers had planted the dangerous drugs on him and that he had been framed. He called one witness in support of his version.

5. The Magistrate after carefully considering the evidence found that the charge had been proved to his satisfaction beyond reasonable doubt.

6. In his appeal, the Appellant relies upon the general grounds of appeal set out in his notice of appeal.

7. In his submissions before me this morning he again repeats his defence. He again maintains that the police officers framed him. He points out to me that in the past, where he has been charged with similar offences of possession of dangerous drugs, he has pleaded guilty because he knew he was guilty. In this case he pleaded not guilty, because it is his contention that the case against him was fabricated.

8. I have taken into account all that the Appellant has said to me. This was a case which revolves around the credibility of witnesses, both for the prosecution and the defence. The best person, indeed the only person, appointed to resolve that issue is the trial magistrate. From his statement of findings it is quite clear that Mr Duggan understood the evidence given before him, and applied it correctly.

9. He was aware, and this is demonstrated in his statement of findings, that even though he disbelieved the Appellant and his witness the burden lay on the prosecution to prove the Appellant's guilt on the charge. Mr Duggan had the advantage, which I do not, of having heard and seen the witnesses, including the Appellant and his own witness, give evidence.

10. There is nothing in Mr Duggan's statement of findings that indicates his approach to the evidence or the case was in any way flawed. It is not for me to substitute any view that I may have on reading the appeal bundle for his view on the veracity of witnesses.

11. I am therefore satisfied that Mr Duggan's conviction of the appellant on the charge is unassailable on appeal, and therefore the appeal is dismissed.

Representation:

Miss Catherine Ko, Government Counsel, for Respondent

SZE Wuen-yee, Appellant, in person