HKSAR v. Bans Gurjeet Singh

HCMA 287/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 287 OF 2006

(ON APPEAL FROM ESCC 4127/2005)

____________

BETWEEN

____________

Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 June 2006

Date of Judgment: 13 June 2006

______________

J U D G M E N T

______________

1.The Appellant was charged with one charge of possession of dangerous drug, and after trial he was convicted.

2.The evidence is not complicated.  On the day of the offence, a team of plain-clothes police officers stopped and searched two persons.  One of them was a Chinese person SO Ho-ping, he was the 1^st Defendant in this case and the other, the Appellant, who was the 2^nd Defendant in this case.

3.A packet of cannabis resin was found on the 1^st Defendant and in the Appellant’s hand was found a cigarette containing 0.18 grammes of cannabis.  The 1^st Defendant had pleaded guilty at the beginning of the case and the Appellant was tried alone.

4.The evidence was that the Appellant explained to the police officers after caution that he was only holding the cigarette for his friend, referring to the 1^st Defendant.  At the end of the prosecution’s case, the Appellant elected not to give evidence. 

5.The learned Magistrate in coming to his decision had considered what the Appellant had said, but at the end of the day, he decided that the Appellant did not need to hold the cigarette for the 1^st Defendant in the circumstances and said, “this means each of them held what belonged to oneself.”

6.I am not exactly sure what he meant by that, but I assume that he meant that the police evidence was that the 1^st Defendant did not have anything in his hand, he was not carrying anything, so there was no reason for the Appellant to hold the cigarette for the 1^st Defendant.  The learned Magistrate went on to conclude that because the cigarette did not look like a regular cigarette, as it was pinched at one end, and also the Appellant was found in the company of the 1^st Defendant who had a packet of cannabis resin with him, he found that the Appellant must have known the content of this cigarette he was holding. 

7.I am grateful to Ms Panesar for her very comprehensive and able written submissions, and I am indeed persuaded that this conviction is unsafe and unsatisfactory because the learned Magistrate seemed to say that because the Appellant was found in the company of the 1^st Defendant, who had cannabis in his possession, therefore the Appellant should have known that the cigarette contained cannabis and it is rather like he was saying that he is guilty because of his association with the 1^st Defendant, who was.

8.This conviction therefore cannot stand, and Mr Ho for the Respondent has very wisely and properly conceded that, but he had applied for a re-trial which is objected to by Ms Panesar.

9.I have considered the evidence in this case, I do agree that this is proper case to be sent back to the Magistrate’s court for a re-trial.  The appeal is allowed, the conviction is quashed, and if the Appellant had paid his fine, the fine is to be returned to him and the case is remitted back to the Magistrate’s court for a re-trial.

Mr Paul Ho, Senior Government Council, for the Respondent

Mrs M Panesar, instructed by Messrs B Manek & Co., for the Appellant