Cheng Kee Hing v. The Queen

CACC001005/1978

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Coram: Li, J. in Court

Date of Judgment: 13th November, 1978

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JUDGMENT

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1. I approach this appeal not without some caution. The Appellant was convicted of the offence of the possession of offensive weapon in a public place. Originally he was charged with two offences; one of loitering and the other of possession of offensive weapon. He was acquitted of the offence of loitering but convicted of the latter. The evidence in support of the prosecution case was that at the material time the Appellant was seen loitering in the vicinity of Sai Yeung Choi Street and Nelson Street by two plain clothes detectives who were watching him. He was seen following pedestrians, namely two boys, into a set of premises and without doing anything he came out again from the premises. Later he was seen following a middle-aged man who hailed and boarded a taxi. He then walked away. The time he was seen doing this was approximately 6.45 in the morning of the 11th July, 1978. The two plain clothes police officers then approached the Appellant and asked him what he was doing. He gave no satisfactory answer except saying that he was going to visit a friend. When he was asked the name and address of his friend he could not tell the police officers. He was then searched. Underneath his socks was found the knife which was the subject matter of the charge of possession of an offensive weapon. He was brought back to the police station and charged. That was the sum total of the prosecution evidence.

2. The defence was that he was never in possession of that weapon. It is alleged that right at the beginning of the case he told the Court the police tried to induce him to admit to guilt. The allegation was that one hour after he was arrested and brought back to the police station the police constable who searched and arrested him asked the other police constable who was at the scene to fetch a knife. The arresting police constable at that time told the accused to admit the guilt of unlawful possession. He was not told of possession of what he was supposed to possess. When the Appellant declined to admit to guilt the arresting officer asked the second prosecution witness to bring a knife and then holding the knife in front of the Appellant and told him that either he admitted to the guilt of the possession offence or he, the arresting officer, would charge him with a drug offence. Then two small packets of what looked like dangerous drugs were put in front of the Appellant. The Appellant was forced to consume some of the dangerous drugs the balance of which were retained by the arresting officer. The Appellant was taken to the cell. Before this he was told to emply his pocket and remove all his possessions. Then he observed the arresting constable, namely, the 1st prosecution witness, put the two packets of dangerous drugs in one of his socks and that was put together with the prisoner's property which was put in a package, sealed and was deposited in the police station.

3. At the commencement of the trial counsel for the Appellant asked the Court that the prisoner's property belonging to the Appellant be produced. That was produced. After hearing all the evidence the sealed parcel was opened. Inside one of the socks were found 2 packets of what looked like drugs and possibly drugs. It was on this evidence that the Appellant alleged he was framed. The learned Magistrate, having considered the case of the prosecution and analysed the Appellant's allegations, accepted the prosecution evidence and rejected the allegations of the Appellant. The learned Magistrate convicted the Appellant of the offence of possession of an offensive weapon. Hence this appeal.

4. The grounds of appeal is that the learned Magistrate applied the wrong test in law in deciding guilt or innocence of the Appellant. Secondly the learned Magistrate did not evaluate or properly evaluate the evidence adduced before him. Thirdly that the conviction is unsafe or unsatisfactory in all the circumstances of the case and having regard, inter alia, to the foregoing either individually or collectively or otherwise. Mr. Sanquinetti, learned counsel for the Appellant, in his usual persuasive manner contends that in the circumstances there must be at least a reaonable doubt as to the guilt or innocence of the Appellant. As such there is ample room to give him the benefit of doubt. The first contention is that the learned Magistrate applied the wrong test of guilt or innocence. In his statement of findings regarding the offence of possession of an offensive weapon he said:-

"On the B charge I believe the evidence of PW1 and PW2 that the knife produced, as an Exhibit, was found concealed in the defendant's sock under his trousers leg when he was searched in the street and I convicted as charged."

It is urged that in so doing the learned Magistrate was wrong in acting and considering only on the prosecution witness without regard at that time to the defence evidence. Reading the statement of findings I observe that the learned Magistrate went on as to various possibilities and probabilities which amount, with due respect to the learned Magistrate, to the realm of speculation. It is true that the evidence both of the prosecution and of the defence must be looked at and examined in totality so as to consider the guilt or innocence of the Appellant in this case. In the case of YU Chung-kung v. The Queen in Criminal Appeal 392 of 1977 that my brother Leonard held that it is trite law as appears from R. v. PAU Wing-shing that it was not correct to approach the question of guilt or innocence of the accused on the basis of deciding which of the two stories the Court should believe. Commenting on PAU Wing-shing Mr. Justice Huggins as he then was in LOK Chi-wai said:-

"A Court must always bear in mind the possibility that neither story is true and that the law requires in the criminal case that the Court shall be satisfied that the prosecution story is true."

Being guided by such rulings and dicta which I respectfully adopt, I have to look at the evidence in totality. Pausing here I must observe that it is not quite correct to say the Appellant made his complaint at the very first opportunity or appearance before a Magistrate. He appeared before a Magistrate on the 17th July, 1978. All he applied for then was bail. He gave no reason for it. On his second appearance, indeed he raised the question saying:-

"I have evidence that the police induced me to admit the guilt."

When bail was refused he was remanded. Then on the third appearance, that was at the date of trial, learned counsel for the defence at the trial said:-

"I have an unusual request to make before we commence. Defendant instructs me that he was given a choice on his arrest while at the police station to plead guilty to a drugs offence or possession of an offensive weapon. He alleges that at the police station some drugs were forcibly administered to him and the remainder were put in his personal belongings into the bag used to hold his prisoner's property. He claimed the police officers concerned put the drugs into his sock and the socks into the bag. We would like to have the property in the bag produced or brought to Court so that we can put it in an exhibit."

That was the allegation that was first put. If one looked at the prosecution evidence first there was prima facie evidence by the two prosecution witnesses that the knife was found on the Appellant. The Appellant refuted that and said the knife was never found on him but was planted on him. The 1st prosecution witness asked the 2nd prosecution witness to bring in a knife which the 1st prosecution witness asked the Appellant to admit of possession. Pausing at this stage I must observe that the evidence or the allegations that the 2nd prosecution witness was the person who brought along the knife was never put to the 2nd prosecution witness at the trial. Although there was some detailed description as to planting of the drugs there was very little evidence as to what transpired in that hour while the Appellant was in the police station. Thus when the learned Magistrate considered the case he said that he had considered all these matters together before he came to any conclusion. With great respect to the learned trial Magistrate it seems that he has not put his statement of findings in the proper sequence and the best of form. However, the whole statement of findings must not be read out of context. If the statement were taken as a whole then I observe he first considered the prosecution evidence, he then analysed the allegation by the defence albeit in a manner which might be described as entering into the realm of speculation. He had heard the case in Court below. He had considered. I cannot say that he has not considered the defence case. He did consider the defence case that the drugs were planted and it is true that had the drugs been planted in such an elaborate manner there was no additional charge against the Appellant of possession of drugs. How the drugs got into the pair of socks or one sock is again a sheer matter of speculation. How the Appellant knew that there were drugs in the socks is yet another matter of speculation. Suffice it to say that the prosecution witnesses vigorously denied the suggestion and allegation that they planted the drugs there. It is true that police officers like any other human beings are not above suspicion. It is quite true that there are occasionally cases where police might be suspected of planting incriminating evidence on persons. One is not to require the Appellant to show that what his allegation must be true. I am quite prepared to accept the proposition that all the Appellant need do is to raise a reasonable doubt in the mind of the trial judge. In this incidence it appeared that the learned trial Magistrate having considered the case for the prosecution and having considered the case of the defence in some elaborate manner, came to the conclusion that he was beyond reasonable doubt that the prosecution case was true. Speaking for myself with some reservation, I find that there is so much to be known as far as the allegation by the Appellant is concerned and I also find that the evidence of the prosecution is straightforward and unshaken. Taking the evidence as a whole I find the learned Magistrate has considered all the possibilities, eventualities. Although he said he convicted as charged earlier than he analysed the defence evidence I have come to the conclusion that I am not justified in interfering with his verdict. Accordingly I dismiss the appeal.

Representation:

Mr. A.J.J. Sanguinetti (D.L.A.) for Appellant

Mr. D.Y. Marash for Respondent