HKSAR v. Luk Hing Man

HCMA001178/2000

HCMA1178/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1178 OF 2000

(ON APPEAL FROM ESCC 3442 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 26 April 2001

Date of Judgment: 26 April 2001

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J U D G M E N T

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1. The appellant was convicted on 20 October 2000 of one charge of possession of a dangerous drug. He was fined a sum of $3,000 and was ordered to contribute $1,000 to costs. He now appeals that conviction.

2. The evidence relied upon by the prosecution was that at about 3:11 a.m. on 23 July 2000, a raid took place by the police on premises known as M2000 Disco in Morrison Hill Road. The appellant was already inside the disco, as was a plain clothes policeman. When the raid was announced, the appellant was heard to shout something and then seen by the plain clothes officer, he said, to remove a white object from the right pocket of his trousers. He was approached by the officer who took him outside and the white object was, the policeman said, a piece of tissue paper wrapped around an orange tablet which, subsequently upon analysis, turned out to be methamphetamine hydrochloride, otherwise known as ecstasy.

3. It was the case for the appellant who of course had to prove nothing, that he had returned to his seats, perspiring from dancing and to mop his face. Looking for a tissue on the table, he saw only wet tissue there. He found, he said, on the back seat in the discotheque, a tissue which was folded and that he picked that up to mop his face at which point he was stopped by the police officer, taken outside, and, when that tissue was unwrapped, the ecstasy pill was found. He said he had no connection with the pill or knowledge of it.

4. There are a number of grounds of appeal. The magistrate found as fact that the tissue paper containing the pill was crumpled into a ball and that it had been removed from the pocket of the appellant by the appellant as described by the police officer who was the 1st prosecution witness ("PW1"). He said this in his findings :

"Firstly, I'm sure that the tissue paper containing this pill was crumpled into a ball. That is how it would be held. If it were a flat piece of tissue, just folded as suggested, the pill would have fallen out when it was picked up by the defendant, as he demonstrated, with his fingers."

5. The appellant had demonstrated picking up, with his fingers extended, a flat folded napkin.

6. The magistrate, in coming to this conclusion, was doing no more than accepting the evidence of PW1 as to the condition of the tissue when he seized it. The magistrate used his common sense as a jury to determine there were no material inconsistencies in the evidence and that the account given by the police officer was one upon which he could safely, as a matter of common sense, rely.

7. The second ground of appeal is that the findings were speculative in that the magistrate speculated that if the tissue was not crumpled the drugs would have fallen out and that was beyond belief that the owner of an ecstasy tablet, if not the appellant, would have placed it in the tissue and there was no reason for someone to simply abandon the tissue and its contents. The magistrate had found, as a matter of his judicial knowledge, the value of such tablet to be approximately $100. Again, the magistrate was doing no more than applying common sense. I am not satisfied on the arguments of Mr Chan that the magistrate's findings amounts of speculation. There was evidence from PW1 which was specifically accepted as to the condition of the tissue and where the drugs were found. His rejection of the account by the appellant in the terms that he did is no more than using his common sense to search for and ascertain whether there were any material inconsistencies in the case of the prosecution.

8. In all the circumstances, I found the magistrate approached this matter correctly and no complaint can be made concerning the conviction. The further grounds of appeal also failed there being no argument available on them, the appeal is dismissed.

Representation:

Miss Catherine Ko, SGC of the Department of Justice, for HKSAR

Mr P.L. Chan, instructed by Messrs Wong, Fung & Co., for the Appellant