HKSAR v. Chan Chung Yin

HCMA000745/2000

HCMA745/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.745 OF 2000

(ON APPEAL FROM SPCC 2294 OF 2000)

----------------------

-----------------------

Coram: Hon Stock JA in Court (sitting as additional judge of the Court of First Instance)

Dates of Hearing: 4 and 20 October 2000

Date of Judgment: 20 October 2000

-------------------------

J U D G M E N T

-------------------------

1. The appellant appeared before a magistrate charged with an offence of trafficking in dangerous drugs. Another person, Leung Kai Shing ("Leung"), was charged with possession of dangerous drugs.

2. The offence was said to have taken place on 3 March 2000 at the junction of Shatin Pass Road and Lung Cheung Road in Wong Tai Sin. The appellant is said to have been in possession of one plastic bag containing 0.22 grammes of a mixture containing heroin. He pleaded not guilty but he was convicted by the magistrate, and he appeals against that conviction.

3. The evidence called by the prosecution was that of two police officers. They said that they saw the appellant walking and looking about and followed by Leung, and they saw the appellant take something from his left trouser pocket and give it to Leung who placed it inside his jacket at shoulder level. Then Leung handed something to the appellant who put it in his left front trouser pocket. The two men then went their separate ways. The appellant was stopped and searched and $30 was found in the trouser pocket into which he had placed the item given to him by Leung. He also had something like $6,000 in a bag. He was arrested and to the police officer who arrested him he said "I did not sell. I only gave him the stuff.".

4. The other man Leung was stopped and searched, and underneath his T-shirt there was found at the left shoulder position a resealable plastic bag with the drugs which are the subject of the charge.

5. The appellant gave evidence. He said that Leung merely asked to borrow money and he gave Leung only $30, but when Leung seemed dissatisfied with this amount, the appellant asked for the return of what he had in fact lent and the money was returned. This explains the exchange which the police saw. Leung gave evidence on the appellant's behalf and supported what the appellant said. He had pleaded guilty to the possession offence.

6. The magistrate believed the evidence of the officers and disbelieved the account of the appellant and of his witness. He also accepted that the appellant had said to the officer "I did not sell. I only gave him the stuff.". That evidence was, he thought, important in the context. The magistrate drew what he considered to be the only reasonable inference in the circumstances, namely, that the appellant had supplied the drugs to the man, Leung.

7. I adjourned the case upon the last hearing, having heard the appellant at length. He gave a lengthy account of his treatment at the hands of the police, and he also said that he had been off drugs for some months before the alleged offence and had had urine tests to show it. He said that he had made a complaint to the CAPO. It emerges that he had allegedly made statements confessing to the offence and I thought it a little odd that the statements had not been produced.

8. I am conscious of the rule that where a witness statement or record is held inadmissible because not proved voluntary, the earlier oral statement or the evidence of it may well be regarded as suspect. These recorded statements were not produced and I wondered whether their existence was disclosed and whether the defence might have been deprived, therefore, of the opportunity of availing itself of the benefit of the rule, and I decided, in the event, to call for a transcript, which I have received. It shows that the magistrate conducted the proceedings with great conscientiousness and care. He, in fact, heard allegations made against the police about their conduct after the appellant's arrest. There was even reference by one of the officers in his evidence to the fact that there had been a record of interview, so there was no attempt to hide the fact that statements had been taken, and indeed I am told today by Ms Sin that the appellant was given and signed for the statements, and he himself tells me that he told his counsel of them.

9. The question that has slightly exercised my mind is whether the magistrate, in deciding upon the reliability of the evidence of the earlier oral admission, took into account the allegations of post-arrest proper conduct. He must have done so, because he said "I considered all the evidence", and he was of the view that the evidence of the police officers was credible and appeared to have been given honestly.

10. Credibility, as I have already explained to this appellant, is not a matter for an appeal court, but is pre-eminently a matter for the magistrate. He believed the police and once that had happened, a conviction was inevitable. It is impossible to say that the magistrate has approached this case making any error of law. Accordingly, the appeal against conviction is dismissed.

11. I did ask, I should add, for the results of the urine tests, and I have a report saying that none was conducted in the month prior to this appellant's arrest, but I do not suggest that that is relevant to my decision.

12. The appellant also appeals against sentence. He was sentenced for this offence to a term of 22 months' imprisonment. The magistrate took a starting point of 24 months and allowed a discount of two months for the fact that the amount of narcotic was small.

13. The appellant has previous convictions, the last one in 1991 for possession of dangerous drugs. That is not held against him; it just means he cannot be treated as a person of previous good character.

14. The starting point cannot be criticized, it is perfectly acceptable according to accepted tariffs, and the magistrate's approach again cannot be criticized. The appeal against sentence is also dismissed.

Representation:

Ms Mary Sin, SADPP for DPP, for the Respondent

Appellant in person