HKSAR v. Cheng Wah

HCMA 837/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 837 OF 2007

(ON APPEAL FROM TWCC 1581/2007)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 7 December 2007

Date of Judgment: 7 December 2007

Date of Reasons for Judgment: 14 December 2007

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REASONS  FOR  JUDGMENT

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1.The Appellant was convicted in the Magistracy after trial before Mr John Glass, on one count of trafficking in a dangerous drug, being 19 pellets, containing 2.91 g of a mixture containing 0.90 g of heroin hydrochloride.  He was sentenced to 24 months’ imprisonment.  He appealed against conviction only.  On 7 December 2007 I dismissed the appeal, advising that I would hand down my reasons for so doing at a later date.  My reasons follow.

2.The facts which emerged from the prosecution evidence were that the Appellant had been seen leaving his flat; he aroused police suspicions and was stopped and searched.  An empty cigarette box, containing a plastic bag in which were 19 pellets of heroin, was found in his trouser pocket

3.The Appellant was cautioned and during questioning he admitted that he was carrying Number 4 heroin and had put it into his pocket to sell it to other addicts, so he could earn money to buy white powder for himself.  He did this because he was unemployed.

4.He told police he had bought the drugs from “Fat Boy” in Yau Ma Tei, for $100 per pellet which he would sell to addicts for $120 per pellet.  After arrest and further caution he said to the police officer, “Some white powder was for sale to junkies in Tsuen Wan and some was for my own consumption”.

5.Police searched the Appellant’s flat but found nothing illegal there.

6.At trial the Appellant’s possession of the drugs was not disputed, nor was his identity.  The Appellant denied making any admissions in the street maintaining that the drugs had been found at his flat.  The only admission he agreed he had made, was that the drugs were for his own consumption.

7.A voir dire was held at which the Appellant gave evidence.  The Magistrate was satisfied that the admissions had been made voluntarily and in the circumstances described by the police officer.  He found that the Appellant had a case to answer on the general issue.  The Appellant gave evidence but did not call witnesses and adopted the evidence he had given on the special issue.

8.The Magistrate did not accept that the Appellant would have been wandering around with the drugs in a single packet, if it was for his own use only.  He found that the drugs had been packed deliberately in an easily transportable form for the purposes of sale.  He found that even if the Appellant had been working and earning money to supplement the monthly CSSA allowance that he shared with his wife, he would still be short of money for his overall living costs.  The Magistrate believed the Appellant was supplementing his income by the sale of the drugs.  He believed that what the Appellant had told the police officer, on arrest, was true.

9.The Appellant filed the standard grounds of appeal.  Later, by a letter dated 26 November 2007, he applied for a full transcript of the trial claiming that he needed it to “sort out” what evidence from the witness was worthy of trust by the Magistrate and what of his own evidence had been rejected by the Magistrate.  I considered and refused the application because the Magistrate’s findings were detailed and set out at some length the matters that he had taken into account both on the special and general issues.  Further, the transcript of defence counsel’s submissions on the special and general issues was available.

10.In the letter the Appellant particularised his grounds of appeal.  He complained that the Statement of Findings was based on the “subjective” views of the Magistrate which had no substance.  He complained in particular of paragraphs 5, 6, 7, 11, 12, 13 and 16, where he said the contents were very much alike as the Magistrate just repeated that he believed the witness but did not believe the Appellant.  In each of those paragraphs the Magistrate had set out findings on different aspects of the evidence.  As the case essentially was one man’s word against another; it was inevitable that the Magistrate would have to state which of the two accounts he was sure of.

11.The Appellant claimed that the important paragraph was the second one, because that revealed that the witness,PW1, was not the only police officer at the scene.  That being the case, he asked why no other witness was called.  It was no secret that two officers were present but it was for the prosecutor to decide whether the second officer should be called.  As the Appellant was represented, his lawyer, ifhe had wished, could have asked that the second police officer be called on the special issue, or that he be tendered for cross-examination on the general issue.  He adopted neither course, a decision based no doubt on instructions from the Appellant.

12.The Appellant also queried why no other evidence was available such as fingerprints, tape recordings, the trousers he was wearing, or a photograph of the trousers he was wearing.  He complained that the prosecution had withdrawn the cautioned statement from evidence and commented that this must demonstrate there was a catch somewhere, but that the Magistrate “ seemed to have turned a blind eye to this point of doubt”.  In fact the cautioned statement was not withdrawn, rather the Magistrate dealt with the verbal admissions made, allegedly, after caution and found them to have been made voluntarily.  Ultimately, he relied on them.

13.The Appellant referred to a ‘ grave mistake’ in paragraph 14, in which the Magistrate referred to his employment in moving glass panels and his overall income and expenses.  He complained that the costs and expenditure were mere conjecture on the part of the Magistrate.  He told the court that he had a decent part-time job, that he worked at least three days a week and that the job had to be approved by the Social Welfare Department, and that he had to apply for approval on each occasion.

14.The Magistrate had taken the details about income and expenses from the Appellant’s own evidence; it is difficult to discern what the “mistake” was.  He was entitled to make his own assessment of that information.  The Appellant had given evidence that the drugs would not last him for a whole month, and when they were finished, he would use methadone as a substitute and would not resort to selling drugs.  The Magistrate did not believe the evidence of the Appellant.

15.On appeal the Appellant made submissions which were an enlarged version of those in his letter.  Having considered those matters and having examined his complaints about the way the Magistrate dealt with the evidence, I am of the view that his criticism was not substantiated and the Magistrate was entitled to reach the conclusion of guilt that he did.  None of the matters put before me by the Appellant had shown that the Magistrate dealt with the evidence wrongly.  I can find no grounds to justify interfering with this conviction.

16.Accordingly this appeal is dismissed

Mr Harish Melwaney, SGC of the Department of Justice, for the Respondent

The Appellant acting in person