Kam Yuk-hing v. The Queen

CACC000389/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 389 OF 1973

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Coram: Trainor J. in Court.

Date of Judgment: 22 May 1973

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JUDGMENT

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1. The appellant was convicted of being in possession of dangerous drugs on the 25th of February 1973.

2. Evidence was given by 2 police officers of finding him in a room in the Wang Tau Hom Resettlement Estate in possession of a tinfoil and a paper tube each of which, according to the Government Chemist, contained salts of esters of morphine.

3. The cross-examination of these witnesses was directed to the question of their credibility and to show that the appellant had ceased to be a drug addict. The evidence of the appellant was substantially to the same effect. The accused was convicted but on an application to review the case was reopened and medical evidence was heard. This evidence was to the effect that certain tests had been done on the appellant and were found to be negative, indicating that the appellant had abstained from using heroin at the period which covered the time of the charge.

4. The learned magistrate found that the police evidence was truthful and reliable and was unable to accept the appellant's denial of possession of the articles and the drug set out in the charge. He pointed out in his statement of findings that the defence concentrated largely on the question of the appellant's use of drug but that that was something which was irrelevant to the charge of possession. He found him guilty as charged.

5. The appellant appealed against his conviction. Mr. Bernacchi who appeared for the appellant told the court that the appeal was now only one of principle as the appellant has served his sentence. He argued that as it was accepted by the learned magistrate that by reason of the appellant's physical disability it was almost impossible for the appellant to use the drug in the way that was to be implied from the drug and articles found - "chasing the dragon" he called it - and as the medical evidence established that the appellant had not used heroin during the relevant period the learned magistrate should not have accepted the charge as being proved. There were circumstances, he alleged, surrounding the case which ought at least to have raised doubt which should have been resolved in favour of the appellant. He maintained it was against all credibility that the appellant would have the means of smoking the small quantity of drugs found which he was incapable of using.

6. Counsel further suggested that there was an esprit de corps among the police witnesses which would ensure that each supported the evidence of the other.

7. I do not consider there is any substance in any of the points raised.

8. The learned magistrate was satisfied that the evidence of the prosecution witnesses was truthful and reliable. As to whether or not the appellant had smoked heroin at the time in question was completely irrelevant. In my opinion the conviction was perfectly justified and I dismiss the appeal.

Representation:

Mr. Bernacchi (W.I. Cheung & Co.) for Appellant

Mr. Millest. C.C. for Respondent