HKSAR v. Poon Chi Wai

HCMA000491/2004

HCMA491/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.491 OF 2004

(ON APPEAL FROM KCCC 20454 OF 2003)

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 6 July 2004

Date of Judgment: 6 July 2004

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J U D G M E N T

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1.The appellant Poon Chi Wai was convicted after trial before a magistrate of possession of equipment fit and intended for the smoking of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance, Cap.134. He was sentenced to nine months' imprisonment. He now appeals both conviction and sentence.

The prosecution case

2.The police officers raided the subject premises. A man was arriving at the flat. The officers used the key taken from the man to enter the premises.

3.At the time of the entry, the appellant was the only person inside the flat. He was sitting on a sofa with a teapoy in front of him. On the teapoy were two containers with double straws : a bottle and a paper drink box. Both of them contained traces of methamphetamine. There were also some foil and a piece of card paper and some plastic bags, all with traces of methamphetamine. Lighters were also seized.

4.Upon arrest, the appellant said, "Ah Sir, the ice bottle and the apparatus are for my own use to 'bop' the ice."

The defence case

5.The appellant said he was not inside the premises when the police gained entry. He arrived after the police were inside the premises. The police asked why he was there and he said he was looking for someone. They were not satisfied and they arrested him. He never uttered any verbal but he was not subject to any force, threat or inducement. He signed the paper work at the police station just because it was convenient to do so.

6.The appellant mentioned that he made admissions at an interview under video which the prosecution did not adduce in evidence. He explained that he made admission because he wanted bail.

The magistrate's reasons

7.The Magistrate held that the items seized plainly amounted to equipment fit and intended for smoking of dangerous drugs. The question was whether the appellant did possess them.

8.The Magistrate accepted the evidence of the police. He disbelieved the appellant that he arrived at the premises after the police had gained entry. The Magistrate ruled that the verbal was actually made and it was voluntary and admissible. He did not rely on any alleged admissions at the interview under video.

9.The Magistrate found that the appellant had admitted possession of the apparatus and one of the containers and he found he was knowingly in possession of the items in front of him.

Grounds of appeal against conviction

10.The appellant made two points. First, he stated that the court had no integrity because the co-defendant in the case was dealt with separately. At the first appearance, it was ordered that the co-accused was to stand trial with him jointly but it turned out that he was tried alone. The respondent submitted that the co-accused had pleaded guilty and hence there was no trial. The appellant was asked of what impact that had on his trial and he said it was not so much an impact but a lack of integrity of the court which in turn had an impact on his trial.

11.Secondly, he said that even though he was there, the Magistrate could not say that the items belonged to him. The Magistrate relied on the alleged admissions but he said the signed cautioned statement at police station just because he did not want to lose freedom. I take it to mean that he wanted bail.

Consideration upon appeal against conviction

12.The matter of the admission by the appellant was fully dealt with by the Magistrate. The ground that the appellant signed the cautioned statement at the police station because he did not want to lose freedom or he wanted bail was considered by the Magistrate and the statement was ruled voluntary and admissible. There was no fault to be found on the Magistrate either in admitting the statement or in believing the police officers. The Magistrate directed himself properly as to possession. Hence, the appeal against conviction is dismissed.

Appeal as to sentence

13.The Magistrate referred to tariff for possession of methamphetamine or heroin of 12 months and stated that there was little distinction between possession of dangerous drugs and possession of equipment fit and intended for consuming dangerous drugs.

14.Mr Fan, counsel assigned by the Director of Legal Aid for the appeal against sentence only, submitted that the accepted tariff for possession of apparatus is 3 months' imprisonment without aggravating factor, and with such aggravating factors such as possession in a public place, sentence may be increased to 6 months (see R. v. Law Sing HCMA890/1996, per Stock J.) Mr Fan further submitted that Law Sing has been followed in HKSAR v. Lee Sheung Cheun HCMA109/2001, per Gall J.

15.The respondent accepted that the tariff for possession of equipment fit and intended for consuming dangerous drugs is usually 3 months and other cases referred to reflect such sentence is usually dealt out. But nevertheless, Ms Lam for the respondent supported the Magistrate by saying that the circumstances showed that the appellant must have been in possession of dangerous drugs at some stage. As to this point, I am afraid I cannot agree.

16.In the circumstances, I set aside the sentence of 9 months' imprisonment and sentence the appellant to 3 months' imprisonment instead. The sentence to run consecutively to the existing sentence.

Representation:

Ms Winnie Lam, GC for the Department of Justice, for the Plaintiff

Mr Fan Shun Yan, Edward, instructed by the Director of Legal Aid, for the Appellant (re : sentence)

The Appellant in person (re : conviction)