Cheuk Chiu v. The Queen

Case No.HCCC 625/1969

Court

High Court CFI

Date31 Oct 1969

Judge—

Case Document

100%Judiciary

HCCC000625/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 625 OF 1969.

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BETWEEN
	Cheuk Chiu	Appellant
	AND
	The Queen	Respondent

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Coram: Pickering, J.

Date of Judgment: 31 October 1969

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DECISION

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1. The appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking contrary to Section 7(1) of the Dangerous Drugs Ordinance (41 of 1968) and was convicted of simple possession and fined $350.00. He now appeals against conviction.

2. The facts are set out in considerable detail in the resume of the evidence contained in the magistrate's Statement of Findings where they appear as follows:-

	"P.W.1 P.C.7577 CHOW Fong gave evidence that at 21.00 hours on 31st May he was on duty along with P.C. 4575 in Shanghai Street. They were both in uniform. P.W.1 stated that he saw the Appellant walking towards him. When the Appellant was within a few feet of him he tried to turn round. P.W.1 stopped him. He then searched the Appellant and in his right shorts pocket found a cellophane packet containing some powder form substance which he suspected was Dangerous Drugs. P.W.1 cautioned the Appellant who made no reply. The Appellant was then transported to Mongkok Police Station on a Police vehicle. At 21.35 hours on the same day P.W.1 in the presence of the Duty Officer P.C.4575 and the Appellant handed the cellophane packet of suspected Dangerous Drugs which he had seized from the Appellant to DDPC 304.
	P.W.2 P.C.4575 CHEUNG For-wai was tendered for cross-examination as he was with P.W.1 when the Appellant was stopped and searched and his evidence was likely to be of a similar nature.
	P.W.3 DDPC 304 CHAN Yiu gave evidence that at 21.35 hours on 31st May 1969 P.W.1 P.C.7577 in the presence of the Duty Officer P.W.2 P.C.4575 and the Appellant handed him a cellophane packet containing suspected Dangerous Drugs. DDPC 304 placed the packet in a Government Envelope which was then sealed. The Appellant was asked to sign. He did so but also wrote "it is not my property". The sealed envelope was taken to the Government Chemist and later it was returned together with a certificate. DDPC 304 identified both the envelope and the certificate and produced them (P1 and P1A respectively).
	In cross-examination P.W.1 was asked what kind of shirt the Appellant was wearing when arrested. P.W.1 replied that it was a white shirt with short sleeves and one pocket. He was shown a sports shirt (D2) and it was put to him that that was the shirt worn by the Appellant and not a white shirt. P.W.1 did not agree. He was also shown a pair of shorts (D1). He agreed that these shorts were similar to those worn by the Appellant when he was arrested. He agreed that there was a hole in the right pocket of the shorts he was shown. P.W.1 denied that he asked the Appellant to remove his shorts when he was searching him in Shanghai Street. He denied that he had manhandled the Appellant. He did not agree that the Appellant swore at him. He denied that in the Police vehicle he took a packet from his right breast pocket and said to the Appellant "this I found on you, I'll sort you you cocky so and so". He denied the allegation that he was framing the Appellant. In reexamination P.W.1 stated that when he searched the shorts worn by the Appellant when he was stopped by him there were no holes in the pockets.
	P.W.2 in cross examination stated that on the day in question he and P.W.1 went up to him. He did not agree that P.W.1 had asked the Appellant to remove his shorts. He did not hear any abusive language. In the Police vehicle he did not see P.W.1 holding a packet nor did he hear P.W.1 say to the Appellant "you cocky bastard I'm going to fix you". P.W.2 denied that he helped in searching the Appellant. He denied that the shirt (D2) was the shirt worn by the Appellant. He stated that the Appellant was wearing a white shirt.
	The first witness for the defence was Michael Blumenthal Chief Officer Victoria Reception Centre who produced two photographs one full face (D3A) one profile (D3B) of the Appellant. These photographs had been taken when the Appellant was admitted to the Victoria Reception Centre on 2.6.69.
	The Appellant then gave evidence. He stated that he was a plumber and had his own business. He recalled being searched by 2 police officers on 31.5.69 at the junction of Mongkok Street and Shanghai Street. When he was approached by the police he was waiting at traffic light to cross the road. He was on his way to buy sanitary ware-a basin and toilet bowl. At the time he was stopped he was wearing a light brown sport shirt (D2) and a pair of shorts (D1). The Appellant stated that he was upset when he was seized by the police. He was searched and was asked to remove his shorts but he refused. He asked the police to take him to the police station to search him. He claimed nothing incriminating was found on him at the locus. Whilst he was being searched he abused the police and they abused him. On entering a police vehicle which was to take him to the police station the Appellant alleged that P.W.1 took a packet from his right hand shirt pocket and said he was going to fix him up as he had used abusive language to him. At the police station he was charged with trafficking in Dangerous Drugs. He was arrested on a Saturday and appeared in Court on Monday 2.6.69. Later on 2.6.69 he was taken to Victoria Reception Centre where he was photographed. Eventually on 5.6.69 he was granted bail. He claimed that between the time of his arrest on 31.5.69 and his release on 5.6.69 he had not had any change of clothing. The Appellant stated there was a hole in the right pocket of the shorts (D1) where it was alleged the packet of Dangerous Drugs were found. He was in the habit of carrying tools in his pockets and most of his trouser pockets had holes in them.
	Francis Lui an articled law clerk (F. Zimmern & Co.) gave evidence that he saw the Appellant in Victoria Reception Centre on 3.6.69. At that time the Appellant was wearing khaki shorts and a light coffee coloured casual shirt. On 5.6.69 he was instructed to collect the shirt (D2) and shorts (D1) for production in court.
	In cross-examination the Appellant stated that he had discovered a hole in the right pocket of his shorts (D1) on the morning of the day he was arrested but had not had time to have the pocket mended. He denied that he was wearing a white shirt at the time of his arrest. He denied that when his wife visited him in prison on 1.6.69 she brought him the casual shirt (D2) or that he exchanged shirts with another prisoner."

3. Upon the hearing of the appeal before me, Crown counsel said that he deemed it his duty, in the interests of the appellant, to put forward for my consideration a possibility which had occurred to him in view of the extremely lenient sentence imposed for the possession of dangerous drugs in a quantity sufficient to attract the presumption of possession for the purpose of unlawful trafficking contained in Section 46. of the Dangerous Drugs Ordinance. The quantity and type of drug found by the magistrate to have been in the possession of the appellant, was 0.6 grammes of salts of esters of morphine and possession of any quantity greater than one half gramme is sufficient to attract the presumption. The possibility which Crown counsel invited me to consider was that the lenient sentence imposed was in fact a compromise sentence imposed in lieu of a term of imprisonment because of residual doubts in the mind of the magistrate as to the guilt of the accused.

4. In the absence of very clear evidence that the reason for the imposition of a very light sentence was in fact a doubt in the magistrate's mind as to whether the accused. was in fact guilty, I would not for one moment impute such a reason. There is not the slightest evidence that the learned magistrate was so motivated and no thought in my mind that he was guilty of a dereliction of duty of the nature postulated.

5. Nor do I think that I am entitled to pursue a reflection which at one stage presented itself to my own mind. This was that an appellant with a clear record and a decent income who has been visited with a small fine in respect of an offence for which he might well have expected a prison term, so far from displaying relief at his lenient treatment has felt sufficiently incensed to appeal against conviction and to go the expenses of employing counsel for that purpose and that this emphatic reaction to his conviction might well be indicative of innocence. Tempting as that speculation may be however, I am not entitled to entertain it. My function is to decide whether or not, at the date of the trial and irrespective of subsequent events (unless they constitute admissible new evidence), there was evidence to justify the conviction. The motives for appealing are irrelevant and indeed might well rest not upon the factors I have set out above but on quite separate factors as, for example, an intention to emigrate and a fear that this conviction would thwart that intention by reason of the unwillingness of the authorities in the chosen country to accept immigrants with a criminal record.

6. The appeal must be decided upon the evidence as it was presented in the Court below and without speculation as to either the reasons for the imposition of an undoubtedly lenient sentence or the causes undulying the decision to appeal.

7. Mr. Arculli, for the appellant, raised six grounds of appeal. The first of which was that the learned magistrate failed to give any or any sufficient weight to the fact that a "powder form substance" was allegedly taken from the appellant and that a granular form substance was produced in Court as Exhibit P1. The facts were that P.W.1, P.C.7577 Chow Fong testified to finding a cellophane packet containing "some powder form substance" in the right hand side pocket of the appellant's shorts. This packet was subsequently placed in an envelope at the police station and the envelope sealed in the presence of the appellant. Evidence of the type common in case involving dangerous drugs was given of the passage of the sealed office to the Government Chemist and of its further eventual transmission to the magistrate's court. That chain of evidence was complete but undoubtedly the packet produced to the magistrate and inspected by me, contains a granular substance. Unfortunately the learned magistrate did not specifically deal with this apparent metamorphis. Crown counsel has suggested that the use of the description "powder form" by the police constable was nothing more than loose phraseology and whilst the magistrate does not say so it does appear that in fact he was dismissing the police constable's description as such. What is important in regard to this ground of appeal is the magistrate's finding, expressed in his "Note" made for the purpose of this appeal, that the exhibit P1 had been found in the "right shorts" pocket of the appellant when he was searched by P.W.1. That specific finding is sufficient to dispose of this ground of appeal as also of grounds (2) and (3) which relate to the same matter.

8. The fourth ground was that the learned magistrate misdirected himself on the burden of proof in that he convicted the appellant on a preference for the evidence for the prosecution. On this ground of appeal Mr. Arculli argued that there was no indication in the magistrate's findings that he had directed himself as to the burden of proof and that he appeared to be balancing the evidence of one side against the other whilst under the erroneous impression that it was incumbent upon him to accept one story or the other as opposed to disbelieving both. Counsel further complained that in saying he "did not believe" the appellant's account of events the magistrate had shifted the onus of proof to the appellant. I find no substance in these arguments. In my view it is unnecessary that a professionally-qualified magistrate should specifically use the formula "beyond reasonable doubt" when assessing evidence in a criminal case and the failure of a person so qualified to invoke that or some similar phrase cannot be said, in the absence of some strong evidence to the contrary to indicate that he has either overlooked or put behind him one of the axioms of his daily task. Nor can I accept that in saying he "did not believe" the appellant the magistrate was shifting the onus of proof regarding possession on to the appellant.

9. The fifth ground of appeal was that in observing that the appellant had said in evidence that the police constable (P.W.1) had said that he was going to "fix" the appellant but had not said "I am going to fix you, I will say I found the packet in your right hand shorts pocket" the magistrate had wrongly drawn the conclusion that there was no hole in that pocket. I confess that I am at a loss to know what significance the magistrate was seeking to place upon the fact that the sentence quoted above was not said in evidence by the appellant but I do not construe him as inferring from the fact that these words were not spoken that therefore there was no hole in the pocket. He reached that conclusion because he had found that the packet was indeed found in that pocket and because he did not believe the appellant as to the existence of any hole at the time of his arrest. It is significant that in re-examination the police constable, P.W.1, said that he examined the pockets of the appellant's shorts and found no holes in them. This fifth ground of appeal fails.

10. Mr. Arculli's final argument was that since the magistrate rejected the evidence of the two arresting police officers as to the colour of the shirt worn by the appellant at the time of his arrest, he ought to have rejected or at any rate not accepted, the remainder of their evidence. I can see no reason why the magistrate should not have believed the general evidence of the arresting officers whilst accepting that they were mistaken as to the colour of the appellant's shirt which I should describe as fawn. The magistrate himself said, "Whilst I was prepared to accept that P.W.1 and P.W.2 were wrong regarding the shirt worn by the appellant at the time of his arrest I did not consider this reason enough to reject all their evidence" and with that observation I entirely agree.

11. There is one further matter to which I think I should allude. The magistrate having found that the appellant was in possession of this drug, there arose, by virtue of the quantity so possessed, a presumption that the possession was for the purpose of trafficking (s.46 of the Ordinance) and it was for the appellant to show, on the balance of probabilities that this was not so. No attempt was made to do this and the presumption was never rebutted. In those circumstances I am at a loss to understand how the magistrate came to convict for the offence of simple possession only. His proper course was to convict of the offence as charged. For the purposes of this appeal however nothing turns upon the point.

12. The appeal is dismissed.

	(W.F. Pickering)
	Puisne Judge

31st October, 1969.

Representation:

Judgment read

Mr. Arculli (F.Zimmern) for Appellant

Mr. Lucas,c.c., for Respondent,