HKSAR v. Hui Hon Lin

HCMA1204/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1204 OF 2004

(ON APPEAL FROM KTCC 7038 OF 2004)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 1 March 2005

Date of Judgment : 1 March 2005

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J U D G M E N T

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1.The appellant appeals against his conviction by Mr Dufton of the offence of unlawfully trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, namely 0.85 gram of a mixture containing 0.54 gram of heroin hydrochloride together with four tablets containing 0.05 gram of midazolam.

2.The appellant who was unrepresented, relies only upon the pro forma grounds of appeal against conviction found in Form 101.

The prosecution case

3.At trial, the prosecution relied on the testimony of two police officers who had stopped the appellant at about 18:40 on 26 September 2004 on a hill side in Sau Mau Ping.  They testified that, after they had identified themselves as police officers they searched the appellant and found in the right-hand side trouser pocket five packets containing what they suspected to be dangerous drugs.  PC 34787 arrested the appellant for possession of the dangerous drugs and cautioned him.  In response, so both officers testified, the appellant had said :

“Ah sir, I was about to deliver the ‘Nam Chai’ and white powder to the hill slope for someone, only for earning some money.”

Thereupon PC 34787 cautioned the appellant in respect of the offence of trafficking in a dangerous drug.  In response, the appellant said :

“Ah sir, I was only trying to find two meals.”

4.In cross-examination, PC 34787 denied that he had asked the appellant what the drugs were.  Further, he remained adamant that he had given the appellant the reasons for his arrest, cautioned him and the appellant had replied as he had testified.  He denied that he had known the appellant before, knowing him to be a drug addict.

5.PC 54713 took possession of the five packets seized in the search of the appellant and at Sau Mau Ping Police Station sealed them in an exhibit envelope in the presence of the duty officer.  The appellant had refused to sign that envelope.  The Government Chemist’s Certificate spoke to the narcotic content of the mixture and tablets found in the five packets.

The defence case

6.The appellant admitted that the five packets had been found by the police officers in his trouser pocket.  He testified that the drugs were for his own consumption, he having bought them in Sau Mau Ping a little earlier for $540 from a drug addict whose identity he did not know.  That quantity of dangerous drugs would last him about two days.  He had an income of about $6,000-$7,000 per month, in addition to the $1,605 he received as public assistance.  In-evidence-in-chief, he testified that he had been taken back to the police station without having been arrested.  He had said nothing to the police.  However, in cross-examination he accepted that he had been arrested and cautioned in respect of both the offence of possession of dangerous drugs and that of unlawfully trafficking in dangerous drugs.  Nevertheless, he was adamant that he had made no admissions.  He denied having seen the police officer before.

The reasons for verdict

7.In his Statement of Finding the magistrate stated that he rejected the appellant’s evidence without hesitation.  He noted that no issue was taken as to the voluntariness or otherwise obtaining in the circumstances of the alleged oral admission by the appellant, rather the issue was whether or not the appellant had spoken those words.  In respect of that matter, the magistrate found :

“I was satisfied so I was sure that full weight was to be attached to the oral statement attributed to the appellant at the scene of arrest that he was delivering the drugs for someone.”

From that finding, the magistrate determined that he was sure that the prosecution had established all the ingredients of the offence as charged.

The appellant’s submissions

8.The appellant adverted to the fact that there was evidence that another man had been present with him at the time that he was arrested. 

He posted the rhetorical question : “What happened to him?”  Other than that the appellant advanced no submissions of consequence. 

9.In her helpful written submissions, Ms Lam who, appears on behalf of the respondent, submits simply that the magistrate who had the opportunity to hear and observe the witnesses was in the best position to assess their credibility and reliability.  She submits that, clearly, there was sufficient evidential base upon which the magistrate was entitled to convict as he did. 

Conclusion

10.There being no dispute between the appellant and the police officers that the appellant was found in possession of the five packets of dangerous drugs, that are the subject to the charge, the primary issue for the magistrate to resolve was whether or not the appellant had uttered the words attributed to him by the police officers.  Those words, if uttered, and true clearly amounted to an admission by the appellant of unlawfully trafficking in those dangerous drugs. 

11.The magistrate had the advantage of having heard and seen all three witnesses testify.  He reminded himself, correctly, that his rejection of the testimony of the appellant was not “determinative of the issues in the case”.  However, he went on to accept the testimony of the two police officers.  Of particular significance, was their evidence of the oral admissions of the appellant.  The appellant has advanced no argument of any substance whatsoever to undermine either the analysis or the findings of the magistrate. 

12.In my judgment, the magistrate was entitled to reach the findings of fact and the conclusions he drew from the evidence led at trial.  There is no merit in the appellant’s appeal against conviction, which is dismissed.

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

Appellant in person