The Queen v. Cheng Chin Pang
Read the full judgment text of HCMA 773/1991 on BabelCite. This High Court CFI judgment was delivered on 27 December 1991.
1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, contracy to section 7(1) of the Dangerous Drugs Ordinance.
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HCMA000773/1991 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION MAGISTRACY APPEAL NO. 773 OF 1991 ------------------- BETWEEN
Coram: Hon Bewley, J. in Court Date of hearing: 10 December 1991 Date of delivery of judgment: 27 December 1991 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, contracy to section 7(1) of the Dangerous Drugs Ordinance. 2. Two police constables gave evidence that they and three colleagues, led by Sergeant 22117, raided a 2/F billiards centre. They saw the appellant sitting on a chair near one of the tables and holding some money in his hand. There were four other men standing next to him. On the appearance of the police these men dispersed. The appellant also got up and ran, putting the money into his pocket as he did so, but he bumped against the corner of a billiard table and fell. 3. In his trousers pocket the police found a white plastic bag containing five packets of No.3 heroin and another plastic bag containing seven packets of No.4 heroin. The weight of the mixtures were subsequently found to be 36.4 grammes and 5.31 grammes respectively. 4. The police also recovered $2,060 from his other trousers pocket, made up of 1 x $500, 14 x $100 and 16 x $10 notes. They were loosely packed in his pocket. The appellant was cautioned but had nothing to say except that he had left a Key bag in a mahjong room upstairs. 5. The appellant gave evidence and denied that the drugs were found on his person; he first saw them in the police station. But he alleged that he had encountered the same officers at the billiards centre the previous evening. The sergeant had asked him if he knew if anyone was selling drugs there. He said no and he was allowed to go. 6. The appellant said that when they came again next day the sergeant asked him why he was still there. He hit him and arrested him but did not tell him the reason. The appellant admitted that the money had been in his possession but said it was earnings from his hawking business and was in his wallet, not loose in his pocket. 7. An acquaintance of the appellant testified that when the police approached the table the appellant did not run away and he did not see him being searched. 8. The sergeant was also called as a defence witness and it is on his evidence that the main thrust of this appeal depends. He confirmed that he and his squad had visited the premises the previous evening but he had not met the appellant on that occasion. 9. However his evidence about the raid and the arrest of the appellant contradicted that of the arresting police constable. At various times he said:
10. The contradiction arose not only concerning the fall but because PC12366 said that when they entered the billiard room "I was walking on the left hand side. Sergeant was walking in front of me. Other team members were next to me." He also said that when he went up to the defendant the sergeant and the other team members intercepted other people who were running away.] 11. The magistrate in his Statement of Findings found all three police officers to be honest witnesses. He disbelieved the appellant and found that the other defence witness was playing snooker at the time and was concentrating on his game. 12. The magistrate was alive to the discrepancy which he did not resolve apart from observing that the fall might have occurred before the sergeant entered the room. Mr Grounds submits, on behalf of the appellant, that doubt is cast thereby on the evidence of the arresting officer, which in turn might have led the magistrate to take a different view of the defence case. 13. In many cases such a discrepancy would be sufficient to vitiate the conviction but in my judgment this is not one of them. There is no doubt that the sergeant was the leader of this team. It matters not whether he entered the room at the same time as the police constables or some seconds later. He cannot have been far behind them because he took part in the apprehension of the four men who had been standing near the appellant. 14. In any case the issue is whether the police arrested the appellant merely because he had failed to cooperate the day before and subsequently planted the drugs on him in the police station. Had the police been manufacturing a lie of this magnitude, one would expect them to make sure that their evidence tallied very closely. Besides the appellant's evidence was transparently a pack of lies, as the magistrate found. I am satisfied therefore that the arrest took place substantially as described by C12366. 15. Mr Grounds also complains that the magistrate has not indicated how, in the absence of the presumption, since the trial took place on 25th June, he was satisfied that the drugs were for the purpose of unlawful trafficking. The conviction can only be sustained if that was the only reasonable inference. 16. The quantity and packaging point certainly in that direction but are not on their own conclusive. Had the appellant just purchased the drugs for his own consumption sufficient to last him several weeks perhaps he would not have been in possession of so much money. Nor could this have been his daily takings as a hawker. The raid took place at 6 pm, a time when according to his own evidence he normally starts to hawk. Indeed he could not explain why was not at work; he said it was Sunday - his rest day - but in fact 9th May was a Thursday. 17. There is therefore no other reasonable possibility than that these drugs - or some of them at any rate - were in the appellant's possession for the purpose charged. The appeal is dismissed.
Representation: Mr Lavac, senior Crown Counsel, for Crown Mr Christopher Grounds (D.L.A.) for Appellant |