The Queen v. Leung Wai Kwong

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINA APPEAL NO. 928 OF 1987

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 10th December, 1987.

Date of delivery of judgment: 10th December, 1987.

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J U D G M E N T

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1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong.

2. Two arresting officers gave evidence that the appellant was in possession of 21.25 gms. of salts of esters of morphine. The magistrate accepted their evidence. There were some discrepancies, but he was satisfied that they were without significance.

3. However they both said that an envelope containing packets of what proved to be heroin, was found in the right, or right 'front', pocket of the appellant's white shorts. They both said that this pocket was 'zipped'. Although it is not possible to be certain, since the cross-examination was not recorded in question and answer form, it seems that the appellant suggested to them that there was no zip on this pocket. In reply they gave the same evidence as they had done in chief.

4. The appellant gave evidence denying that the drugs were found on his person. He was not asked if he was wearing the same shorts or, if not, where they were. However he then addressed the magistrate and told him plainly that his shorts had no zip on that pocket.

5. In his reasons for conviction the magistrate failed to deal with this point; he made no reference to it at all.

6. In this court the appellant has produced a pair of white shorts with three pockets. There is one at the back that has a zip. The other two (side) pockets have no zips. He was wearing a pair of long trousers.

7. There is the obvious possibility that the appellant has obtained a different pair of shorts since he has been in prison white shorts also, but with the zip on a different pocket. Yet, in that case, he was chancing his arm by suggesting to the police and to the magistrate that there was no zip on the right hand pocket.

8. There is no evidence about what the appellant was wearing at the trial. It is possible that the appellant, knowing that the police were going to say that they had found the drugs in a side pocket with a zip, managed to appear in court in a pair with the zip only at the rear. In that case, however, one would expect cross-examination by the prosecution on the point, as well as evidence in rebuttal. There was neither.

9. The magistrate found the police officers to be witnesses of truth and he disbelieved the appellant. The issue was simple and straightforward. The police were either telling the truth or they were lying when they said the drugs were found on the appellant. There was no possibility of error on that point. But it is possible that they made a mistake about the pocket.

10. If that is the case, however, they must have put their heads together and agreed that their evidence would be that the drugs were found in the right pocket.

11. What concerns me is that the magistrate did not deal with the point. He did not attempt to resolve the obvious difficulty. In spite of his findings of fact, therefore, I am left with a lurking doubt.

12. Counsel for the Crown concedes that the verdict is unsatisfactory.

13. For these reasons the appeal is allowed and the conviction quashed.

Mr. S.R. Bailey, Senior Crown Counsel, for Respondent.

Appellant in person.