The Queen v. Ma Hing Wan

HCMA000032/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 32 of 1986

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BETWEEN

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Coram: Hon. Hooper, J. in Court

Date of hearing: 24th March 1986

Date of delivery of judgment: 24th March 1986

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REASONS FOR JUDGMENT

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1. On the 29th November last year, the appellant was convicted before the Magistrate at Tsuen Wan of possession of 19 packets of dangerous drugs for the purpose of unlawful trafficking therein.

2. Having allowed this appeal against conviction this morning, and having substituted therefore a conviction of simple possession of dangerous drugs, I indicated that I would give detailed reasons for my decision in writing at a later stage. I now do so.

3. The whole of the Crown case was admitted under section 65C of the Criminal Procedure Ordinance as follows -

"On the 28th August 1985 PW1 and PW2 were in uniform on patrol in Fu Man House, Tai Wo Hau Estate. At about 1050 hours that day they observed a Chinese male, later known to be defendant MA Hing-wan, at outside Room 712.

2. The defendant was acting in a nervous manner which aroused the suspicions of PW1 and PW2. PW2 approached defendant and asked him what he was doing there but the defendant had nothing to say. PW1 told defendant that he suspected that he was carrying drugs and said that he wanted to search him. On hearing this the defendant tried to run away but after a short scuffle PW1 and PW2 detained him.

3. PW1 searched the defendant. Inside the waistband of the defendant's jeans PW1 found a packet in newspaper (Exh. 1). Inside the piece of newspaper were 19 packets of magazine paper (Exh. 2) containing suspected DD.

4. PW1 arrested and cautioned defendant. Defendant was brought back to Tsuen Wan Police Station. At 1225 hours the exhibits were handed over to PW3 in the presence of the defendant and the Duty Officer, Tsuen Wan.

5. Defendant was charged with the above offence."

4. The piece of newspaper, 19 packets of dangerous drugs, Government envelope and Government Chemist's Certificate were exhibited as Exhs. P1-4. The defendant gave evidence in his defence in which he testified that he was a drug addict consuming two to three times a day, about $40 to $50 worth a day, and that the 19 packets were for his own consumption. The prosecution in cross-examination of the defendant did not dispute the defendant's allegation that he was a drug addict or that some of the 19 packets were in his possession for his own consumption. It was put to the defendant that he had possession of these 19 packets, at least part of which was for the purpose of unlawful trafficking, but the defendant disagreed with this. Mr. Yeung who appeared for the appellant submitted at the close of the defence case that if the appellant was really trafficking in dangerous drugs he should have had more money on him than was actually found. Furthermore, he argued that if the appellant was really trafficking in dangerous drugs he would not have them all wrapped in one piece of newspaper. The Magistrate merely recorded his judgment as follows :-

"On the balance of probabilities I am not satisfied defendant has rebutted the presumption under section 46 of the Dangerous Drugs Ordinance. I am satisfied beyond all reasonable doubt each and every element of the charge has been proved and I find the defendant guilty as charged."

5. Mr. Graham who appeared for the appellant on the appeal argued that the Magistrate failed to give any sufficient reasons why he was not satisfied that the appellant had rebutted this presumption under section 46 of the Dangerous Drugs Ordinance.

6. The requirements for proper "findings" are set out in Magistracy Appeal No. 859 of 1985, The Queen v. Chong Kam-sau, in the judgment of O'Connor, J. he said :-

"The requirements for proper findings are set out in R. v. MA Wai Shuen, Cr. App. 949/78, R. v. Lam Kam Ming, Cr. App. 607/79, R. v. Lai Yuk Kui, [1981] HKLR 691. As I said in Lam Kam Ming's case the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflict should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

7. In Tang Nai-keung v. The Queen 1976 HKLR p.736, the Court of Appeal was concerned with the evidence put forward by the appellant to rebut a presumption arising under section 10(1) of the Prevention of Bribery Ordinance. In that case the learned Judge dismissed the evidence of the appellant and his witnesses cursorily, saying in regard to the bookmakers and a bookmaker's runner :

"Mr. Hui is utterly devoid of any credibility. I also do not accept the evidence of Mr. Wong, Mr. Lo and Mr. Yip in so far as it seeks to establish gambling winnings or losses of the accused. I have had opportunities of observing these men in the course of the proceedings, and I find them all untruthful witness. None of them stood well in comparatively brief cross-examination. They were unimpressive, and I could not possibly rely on their evidence."

The learned Judge in the Court of Appeal went on to say:

"Very little explanation, however, was given to us why the learned judge came to this result and the matter comes back to the judge's establishment at the nature of the defence for he went on to describe the allegations of the appellant as being "so drastically in conflict with his duties and integrity as a policeman and so repugnant to good sense that I am far from being satisfied on the balance of probabilities that any of these monies exchanged was part of the accused's winnings or losses through any of these three men or at all."

8. The learned Judge referred to the remarks of Huggins, J. (as he then was) in Reg. v. Ma Kwai Chong when he said:

"I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellante court, it may well be that the appellate court will come to the conclusion that his finding of fact was unsafe and may therefore quash the conviction."

9. The learned Judge also quoted from the case of Lam Tin Chung v. Reg. where the Full Court said:

"Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly, there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factor or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes. That, however, is not the type of case we have in mind."

10. In Kowloon Motor Bus Co. (1933) Ltd. and another v. Kong Tung the administrator of the estate of Lung Lin, deceased, the Full Court stated that every judge of fact should -

"Indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses' demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories."

11. In the present case the Magistrate did not say why he found the appellant to be an untruthful and unreliable witness and why he did not believe him. However, in reaching his conclusions that the appellant had not rebutted the presumption he said:

"Having observed the demeanour of the defendant in the witness box, the quantity of drugs involved, the method in which the drugs were packed and concealed, the agreed facts and the whole of the evidence given by the defendant, I was not satisfied on the balance of probabilities the defendant had rebutted the presumption under section 46 of the Dangerous Drugs Ordinance."

12. Now, it is apparent from the record that the number of packets of dangerous drugs was not inconsistent with the defendant's defence, nor was the way in which the drugs were packed and concealed. The Magistrate did not refer to the points made by the defence counsel in his submissions. Neither did he refer to anything on the face of the record to indicate where he thought the appellant was lying.

13. As I have said, even the prosecution accepted or appeared to accept that the appellant was a drug addict and that some of the packets of dangerous drugs were for his own consumption.

14. Crown counsel concedes that there is nothing on the face of the record to indicate that the appellant was lying when he was giving evidence before the Magistrate. And as I have said, the number of packets and the way in which they were packed and concealed was consistent with the defence version of the events. Furthermore, it is not sufficient to say "I find the defendant to be an untruthful and unreliable witness and I do not believe him" without stating reasons for that decision.

15. I was left with the feeling that the evidence for the defence did not get the consideration which it deserved. I was left with the feeling that the conviction in this case was therefore unsafe and substituted therefore a conviction for simple possession of dangerous drugs.

Representation:

Mr. Peter Graham (D.L.A.) for the Appellant

Mr. K.A. Browne (C.C.) for the Crown