HKSAR v. Wong Seut Shan Suzanna

HCMA001254/1999

HCMA1254/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1254 OF 1999

(ON APPEAL FROM WSCC 7510 OF 1999)

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Coram: Deputy High Court Judge Tong in Court

Date of Hearing: 10 August 2000

Date of Judgment: 10 August 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 possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134. The particulars alleged that the appellant was in possession of three hand-rolled cigarettes, each containing some cannabis. The appellant denied the charge and was convicted after trial. She sought to appeal against this conviction.

2. The prosecution case was rather simple. There was no dispute that the appellant was originally sitting in the front passenger seat in her own car which was driven by a man. When the car was approaching a police road block, it was signaled to stop. However, the driver accelerated and left the road block. It was later intercepted by the police. The appellant was sitting in the driver's seat. The man had gone. The cigarettes containing the cannabis were found inside the appellant's handbag which was placed somewhere between the two front seats.

3. The appellant gave evidence in her own defence. She explained how she had been drinking in the bar in Tsimshatsui and came to know a man called David. She drove to Stanley with him. When they arrived in Stanley, David smoked a cigarette which he admitted to contain cannabis. The appellant said perhaps because of the smell, she did not feel well so she let David drive and on the way they arrived at the road block. David drove the car away, saying that he must not be intercepted by the police. The car got to a bus-stop and David ran off. The appellant had to drive the car herself and was later stopped by the police. She explained the situation to the police and the fact that the Marlboro packet containing the cannabis cigarettes actually belonged to David. She said she did not know how the packet came to be inside her handbag. It was either put in there by David or that the packet might have fallen inside.

4. The learned magistrate had made a careful assessment of the evidence. In his Statement of Findings, he pointed out, inter alia, the following :

"Rejection of Defence Case

...

According to the Defendant, David told her he was smoking cannabis. Later on, David sped away from a police road-block and explained that he could not afford to be stopped by the police. David then fled from the vehicle. Under such circumstances, it was most unlikely that the Defendant did not make sure that David took all his property with him, in particular his cigarettes.

I already indicated I found it improbable for the Marlboro packet to have fallen into the Defendant's handbag. The only other innocent alternative was that David put that packet in the Defendant's handbag. On the evidence before me I could not see why he would do that. He was making good his escape from the police. He could easily have disposed of the Marlboro packet and its contents without planting them on the Defendant. In any event, he had befriended the Defendant (though to a limited extent). I could not see any reason for his wanting to get the Defendant in trouble. It was improbable that David could put the packet in the Defendant's handbag without the Defendant becoming aware of it because of : a) the proximity of the Defendant to the Marlboro packet and her handbag and b) on the Defendant's account, if David had put the cigarette packet in her handbag, this could only have happened during the time from when they were at Stanley (where David had again smoked) to when David left the car after going through the police road-block. David would have been driving with the Defendant sitting as the front seat passenger. I already indicated that I rejected the Defendant's version that she was unwell or 'not fully awake'.

It was submitted by the Defence that if the Defendant was in possession of the cannabis, she could have easily disposed of them before the police intercepted her in her car. The fact that the cannabis was found in her handbag by the police suggested truth in what the Defendant said in evidence. This was a powerful point in favour of the Defendant. I considered, however, that the disposal or non-disposal of the incriminating matter could have been dependent on the Defendant's assessment of the risk of detection or the temerity on her part. I rejected the Defendant's explanation in particular that relating to how and in what circumstances a man came to be driving her car and that man's nexus with the Marlboro cigarette and cannabis. I also rejected the Defendant's assertion that she knew she would be stopped by the police."

5. The learned magistrate also reminded himself that the appellant had a clear record, and that the rejection of the defence case did not mean there must be a conviction. He found that the appellant was in physical possession of her handbag and so the presumption under section 47(1)(a) and (2) of the Dangerous Drugs Ordinance would come into operation. However, he considered that there was no credible evidence to rebut the presumption. And in any event, the magistrate stated that even without the aid of the presumption, the irresistible inference was that the appellant was in possession of the cigarettes, with knowledge about the contents.

6. The appellant, in conducting her own appeal, argued that there were many doubtful points in the case. She said there was no dispute that there was a man in the car before she was stopped and the cigarette really belonged to him. She also reiterated that if she had possessed the drug, she could have thrown it away before the police appeared. She emphasized that she was not a cannabis user, so there was no reason for her to keep the cannabis.

7. The learned magistrate had seen and heard the witnesses. His findings were based on an objective consideration of the evidence. He was entitled to come to a view as to whether the appellant was a truthful and credible witness. Having rejected her evidence, it was open to the magistrate to convict the appellant of the offence. I saw no ground to disturb his conclusions. Accordingly, this appeal must be dismissed.

Representation:

Mr David Leung, SGC for Department of Justice, for the Respondent

Appellant in person