HKSAR v. Wong Shing Kit

HCMA 132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 132 OF 2005

(ON APPEAL FROM KCCC 7314 OF 2004)

____________

BETWEEN

____________

Coram : The Honourable Mrs Justice V Bokhary in Court

Date of Hearing : 14 September 2005

Date of Judgment : 27 September 2005

_______________

J U D G M E N T

_______________

1.The Appellant, a man in his early twenties, was convicted after trial before Sham Siu-man, Esq. in the Magistrate’s Court at Kowloon City on three charges.  Two of the charges, being Charges 1 and 3, were of trafficking in dangerous drugs.  One of them, being Charge 2, was of possession of offensive weapons with intent to use them for unlawful purposes.  The Magistrate passed a sentence of 3 years’ imprisonment in all.  This was made up of concurrent terms of 6 months, 6 months and 3 years on Charges 1, 2 and 3 respectively.  The Appellant now appeals against conviction and sentence. 

2.The dangerous drugs the subject-matter of Charge 1 consisted of various quantities of ketamine and cannabis.  The implements the subject-matter of Charge 2 were three beef knives.  The dangerous drugs the subject-matter of Charge 3 consisted of various quantities of ice, ketamine, ecstasy, nitrazepam and cannabis. 

3.In addition to the general issue, on which the Appellant exercised his right not to give or call evidence, there was a special issue on which the Appellant gave evidence.  On the general issue, the Magistrate’s findings of primary fact, made upon his acceptance of the police officers’ evidence, were briefly as follows.  The Appellant, carrying a bag in which the Charge 1 drugs were found, was stopped by the police while on his way out of a flat.  They took him back into the flat. Another man and a woman were inside.  In a box on top of a wall unit were found the Charge 3 drugs as well as a pair of pliers, a pair of scales, some plastic bags and some desiccating beads.  Inside a wardrobe was a rucksack.  The beef knives were found in this rucksack as were three pairs of gloves and a windbreaker.

4.On the special issue, the Magistrate, who accepted the police officers’ evidence and rejected the Appellant’s evidence, made findings which were briefly as follows.  When asked by the police about the Charge 1 drugs, the Appellant said that they were “K Chai” and cannabis, and that they were for sale to earn a little money.  When asked by them about the Charge 3 drugs, he said that they were his. When asked by them about the beef knives, he said that they were his, and that they would be used to chop others if any argument of his with them could not be settled.

5.Having given careful consideration to all the submissions made on the Appellant’s behalf in his appeal against conviction, I find that they amount essentially to assertions that the Magistrate did not approach the evidence with sufficient care when considering the evidence and that the facts found by the Magistrate were insufficient to convict.  In my view, formed after a careful consideration of these submissions, they are without substance.  The proper approach in an appeal like this was stated as follows by the Court of Final Appeal in Chou Shih Bin v. HKSAR (2005) 8 HKCFAR 70 at page 78D-F:

“An appeal under s.113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.  I have gratefully taken that way of putting it from the decisions of the High Court of Australia in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Another (1976) 135 CLR 616 at pp. 619-622 and Fox v Percy (2003) 214 CLR 118 at p.124.  Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  Even so, it will not fail to quash a conviction that it considers unsafe.”

Having given this matter careful consideration, I do not consider these convictions unsafe. The appeal against conviction is dismissed.

6.The perfected grounds of appeal against sentence read:

“	1.	The learned trial Magistrate failed to give any or sufficient regard to the exact minute amount of Methamphetamine hydrochloride (ICE) when he came to sentencing.
	2.	The learned trial Magistrate erred in applying the statutory presumption (S.47 Dangerous Drugs Ordinance) to hold that the Appellant knew that there was ICE in his flat where in fact there were two other flatmates occupying the same flat.
	3.	In the premises, the sentence of 3 years imprisonment, in all the circumstances of the case, manifestly excessive.”

As to Grounds 1 and 2, it must be remembered that there were other drugs, including some very harmful ones, covered by Charge 3.  Ground 3 is an assertion which I do not accept.  All things considered, the sentence was justified.  The appeal against sentence too is dismissed.

Mr Cheng Huan, SC leading Mr Jon Wong, instructed by Messrs Bosco Tso & Partners, for the Appellant

Miss Rosaline SY Leung, SGC of Department of Justice, for the Respondent