HKSAR v. Chau Hon Kwong

HCMA000006/2002

HCMA 6/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 6 OF 2002

(ON APPEAL FROM KCCC 2579 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 22 January 2002

Date of Judgment: 22 January 2002

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J U D G M E N T

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1.This is an appeal against conviction only.

2.The appellant was convicted after trial of an offence of possession of 2.86 gms of "ice" contrary to section 8(1)(a ) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (being the first charged offence) and of a separate offence of possession of a Part I poison namely 0.25 gms of sildenafil citrate contrary to section 23(1), 33(1) and section 34 of the Pharmacy and Poisons Ordinance, Cap. 138 (being the 2nd charged offence).

3.The facts of the offences as found by the magistrate were that the appellant was seen loading something into the boot of a motor vehicle at 5.50 a.m. on the charged date by two patrolling police officers , PW2 and PW3. They approached the appellant and PW2, the primary prosecution witness, inspected the boot of the vehicle. He found there was a small bag which contained the charged drugs. That was a different bag to the object the appellant had been seen putting into the vehicle. The appellant was then alleged to have made a verbal admission to PW2 following which he was arrested. Later at the police station the appellant refused to sign PW2's post recording of the admission as he said it was incorrect.

4.It was common ground the charged drugs had been found in the boot of the car. It was also common ground that the car itself was a company vehicle and that a large number of people had access to it, although the appellant had driven it for the last several days.

5.The appellant's case was that he had no knowledge of the contents of the small bag and the drugs in it were not his. The magistrate rejected his evidence and in that regard relied upon the prosecution witnesses' evidence in convicting the appellant of both charged offences.

6.The grounds of appeal argued before me can be fairly summarised as complaints that the magistrate failed to properly resolve various conflicts in the evidence of PW2, PW3 and PW4, the police officers at the scene of the appellant's arrest, and that for that reason, the convictions were unsafe.

7.There is no doubt that there were significant discrepancies amongst PW2, PW3 and PW4 so far as their evidence is concerned. Some of the more important discrepancies can be summarised as follows:-

Firstly, PW3 in his evidence said that the appellant was, when first seen, standing at the boot of the motor vehicle. But in his witness statement he had said when he first saw the appellant the appellant was inside the motor car. That agreed with the appellant's case in that regard.

Secondly, PW2 said that PW3 was the officer standing behind him when he questioned the appellant and was therefore in a position to hear the appellant's admissions. PW3, in contradiction of that, said he was standing guard at the other end of the vehicle when PW2 questioned the appellant and did not hear what was said.

Thirdly, PW2 said that PW4 arrived at the scene after he had questioned and arrested the appellant. But PW4 said he was standing beside PW2 when he heard PW2 question the appellant and the appellant make the admissions he is alleged to have made.

Fourthly, PW3 said PW4 only arrived at the scene after PW2 had arrested the appellant and while PW2 was showing him, PW3, the seized drugs.

8.As a fundamental matter, it seems to me that the only real evidence against the appellant in this case, given the common usage of the motor vehicle, is his verbal admission at the scene of his arrest. In large part, proof of that verbal admission relied upon the evidence of PW4 supporting that of PW2 to the effect that the appellant made that admission.

9.In my view given the entirely verbal nature of the appellant's admission the learned magistrate was quite right to thoroughly consider the reliability of the police evidence concerning the circumstances of the making of the admission. That is particularly so given the refusal of the appellant to later adopt the police record of the alleged admission.

10.The difficulty the magistrate had was that there was considerable disagreement in the evidence of the police officers themselves as to the ability of PW4 to have heard the admission of the appellant. Without repeating in detail my summary of the evidential discrepancies in the case, that is because according to PW4 he was standing next to PW2 when the appellant made the alleged admission to PW2. Yet according to PW2 it was PW3 who was standing nearby him and PW4 did not appear at the scene until after the admission had been made by the appellant. PW3 also said PW4 arrived at the scene after the arrest of the appellant.

11.The learned magistrate approached the resolution of these matters in the following way:-

"PW2 testified that at the time when he was questioning the D, PW3 was behind them on guard; however, PW3 said that he was at the front of the car watching the whole surrounding at that time. I do not find any significance in it. PW2 was checking on the D, he must have focused his attention on his dealings with the D and less attention would be paid to the surrounding as he knew there was other colleague, such as PW3, taking care of the situation. For this reason, I think PW2 has made a mistake about the position of PW3 at that time. I believe for the same reason that gives rise to the discrepancy when PW2 said PW4 arrived at the scene after he arrested the D, but PW4 said he witnessed and heard what the D said to PW2. PW3 said that when PW2 was showing the exhibits to him, PW4 and a woman police officer arrived, which is also different from that of PW4's testimony. Again, I don't think it has any significance, time of arrival of PW4 is of such minor matter, it is not surprising that PW3 made a mistake about it."

12.It may well be that the magistrate was correct and that the considerable differences between the evidence of the three police officers may be resolved in the way he suggests, although, it seems to me that if PW2 was mistaken about and interchanged the identities of PW3 and PW4 in the way the magistrate suggests it still does not explain who it was that PW2 subsequently mistook as PW4 arriving at the scene.

13.It is true a trial magistrate is in the best position to determine the credibility of witnesses and to determine to what extent discrepancies in their evidence undermine the reliability of those witnesses. But there must come a point where the acceptance of discrepancies as emanating from honest mistake or lapse of memory and of not affecting the reliability of those witnesses undermines the high standard of proof required of the prosecution in a criminal trial.

14.In this case even given any ability of resolving the evidential discrepancies in the way the magistrate attempted to do, I must reluctantly say that the police evidence in its important aspect of PW4 supporting PW2's evidence of the appellant's admission was so confused and contradictory that any conviction based upon it seems to me to be unsafe.

15.Accordingly the appellant's conviction in respect of each offence is quashed and his sentence is set aside.

Representation:

Mr Cheung Wai-sun, D.P.G.C. of the Department of Justice for the respondent

Mr Duncan Percy instructed by Messrs Augustine C.Y. Tong & Co. for the appellant