The Queen v. Chau Kam Wah

HCMA001347/1990

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1347/90

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BETWEEN

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Coram: Hon. Yang, C.J.

Date of Hearing: 24 April 1991

Date of Judgment: 24 April 1991

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant was convicted after trial of possession of dangerous drugs for the purpose of unlawful trafficking. He now appeals against his conviction.

2. The agreed facts were that the appellant was found by the police to be sipping tea inside the Nam Wah Restaurant at Nam Cheung Street, Shamshuipo. On being searched he was found to have in his possession 20 packets containing 6.15 grammes of mixture with 2.91 grammes of salts of esters of morphine. He admitted to possession for his own use but denied the charge.

3. The learned magistrate in finding the appellant guilty of the charge, made a number of assumptions. He stated:

"The Nam Wah restaurant is a notorious restaurant within the jurisdiction of North Kowloon Magistracy. I think that a Magistrate can take into account his knowledge of the area in which he sits. I believe there is authority for that.

Drugs are sold there on a daily basis not by the staff but by customer to customer. The place has good lookouts and the police find it difficult to get in there.

When they do get in and find a man with 10, 15, 20, or 30 packets, that person, who is clearly a would be trafficker converts himself into a person who has just bought the drugs from the traffickers."

4. On the basis indicated above, the magistrate disbelieved the appellant's evidence that he had bought the 20 packets from one Ah Kau for $1,800.

5. In my judgment the learned magistrate was not entitled to take judicial notice and make the assumptions as he did.

6. The appeal is allowed and the conviction quashed. As the appellant admits simple possession, I record a conviction of possession against him and sentence him to a term of imprisonment which is consecutive to the sentences totalling 10 months imposed in June 1990 but allows him being released today.

Representation:

Mr. Steve Chui for Crown/respondent

Mr. Gary Alderdice (DLA) for appellant