Leung Siu Wai v. The Queen
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CACC000059/1979
Coram: Zimmern, J. Date of Judgment: 24 January 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of possession of a dangerous drug, to wit, one packet containing 0.1 gramme of a mixture containing less than 0.1 gramme of salts of esters of morphine before a Magistrate's Court and sentenced to Drug Addiction Treatment Centre. 2. He appealed against both conviction and sentence. 3. The facts according to the prosecution were the appellant and another were sitting on a bench in a small park chatting just before mid-night on 6th November, 1978. Two police officers were performing duties of Special Duty Squad in the vicinity and one of the police officers who gave evidence said he saw them sitting there chatting at the same time paying attention to the few passers by. He revealed his identity to the appellant as the other revealed his to the appellant's companion. They were asked what they were doing there and they said chatting. They were then asked their addresses which were given. They were then separated and the witness questioned the appellant. In reply he said he had dinner with the other person and was having a walk in the area. He was not believed and was searched. The officer said he found something bulging near the left pocket of his windbreaker and after some difficulty took it out and found it was a small pink packet. The appellant then admitted it was white powder the left over of the ration for the day. The appellant was cautioned, arrested, brought back to the station and charged. The appellant gave evidence and confirmed the officer's evidence save the bit about the powder and his admission. He had vehemently denied that the powder was found on him and said the packet was shown to him at the station. 4. In the statement of finding, the learned magistrate set out the evidence of the police officer and the appellant's chief and said:
The learned magistrate did not set out her evaluation of the evidence. She merely believed the evidence of the police officer and disbelieved the evidence of the appellant bearing in mind the defence of frame up. She is of course entitled so to do but as there were clearly some unusual features in this case the appellant in my view was entitled to know the reasons for her belief and disbelief. I shall mention three. First there was no evidence to show that the appellant and his companion were in any way acting in a suspicious manner and the reasons given for the search was tenuous to the extreme. Second on the search itself having seen the packet myself I can say that the so called "bulging near the left pocket of his windbreaker" was no more than the size of a small press button but soft to touch. Nothing ordinarily carried by men was apparently found on him during the search. Third the whole tenor of the cross examination of the appellant was why should the police officer frame the appellant when they were unknown to one another. This reviewed the appellant had told the officer of his discharge from Shek Ku Chau. Without any means of knowing whether the learned magistrate had considered these matters and the totality of the evidence I hold that it would be unsafe to allow the conviction to stand. The conviction is accordingly quashed and the sentence set aside. Representation: Appellant in person. S. Cotsen for Crown. |