HKSAR v. Cheung Sau Ling

HCMA001034/2003

HCMA 1034/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1034 OF 2003

(ON APPEAL FROM KCCC 11125 OF 2003)

____________

____________

Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 18 November 2003

Date of Judgment: 18 November 2003

_______________

J U D G M E N T

_______________

1.The Appellant was charged with one charge of "Possession of a Dangerous Drug" and after trial was convicted. She now appeals against that conviction.

2.The case for the Prosecution was that on the day of the offence, the Appellant was intercepted by the police and was holding something in her fist which was found to be a piece of tissue paper wrapping 0.17 grammes of powder containing 0.06 grammes of Ketamine.

3.The Prosecution called two witnesses. PW1 was the one who chased and stopped the Appellant and finally found the drug in the Appellant's possession and a sergeant, PW2 who in fact was tendered for cross-examination at the request of this defence.

4.The Appellant elected to give evidence. Her evidence was that at the time when she alighted from the taxi, she was intercepted by the police. She was accused of possessing dangerous drugs which she denied. She was then taken back to the police station.

5.The Appellant was represented by counsel at the trial. He cross-examined the police witnesses. Finally in his final submission, he had pointed out to the learned Magistrate what he believed was the inadequacy of the evidence in this case.

6.The Appellant appeals today and she says that the learned Magistrate should not just believe one police officer and not the rest of the police officers. She complained that she was not the one who threw the tissue paper and that other police officers gave different versions from PW1.

7.The Magistrate had an absolute discretion to decide on the evidence whom to believe. The learned Magistrate after considering the evidence concluded that the police witness PW1 was honest and had described what had actually happened. He believed the evidence of PW1 that the drugs were found in the Appellant's hand. He also noted in his oral Reasons that the Appellant had said, in her evidence, that she had never thrown any tissue packet nor did she see any dangerous drug. But it was put to the Prosecution witnesses that at the scene, she was shown the tissue packet.

8.At the end of the day, the learned Magistrate having considered the whole of the Appellant's evidence decided that she was not a credible witness and that she was not telling the truth. In other words, the Appellant's evidence did not cause the learned Magistrate to doubt the evidence of the Prosecution. At the end of the day, the learned Magistrate felt that he could rely on the evidence of the Prosecution witness.

9.An appeal is not a re-trial. The appeal courts have said, time and time again, that the learned Magistrate is the best person to decide on the facts because he has had the opportunity at the trial to observe the witnesses and also to look at the evidence and it would be rare for a Court on appeal to upset the Magistrate's findings of facts.

10.I have read the Magistrate's oral Reasons for his Verdict, it is clear that the Magistrate had ample evidence to convict the Appellant and in doing so, he was not wrong in principle nor therefore do I find that there were any grounds for concluding that his conviction was unsafe or unsatisfactory. So the appeal is dismissed.

Representation:

Ms June Cheung, GC of Department of Justice, for the Respondent

The Appellant, in person