Choi Kwan Sing v. The Queen
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CACC000633/1968 APPELLATE JURISDICTION CRIMINAL APPEAL NO. 633 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 29 November 1968 ----------------- JUDGMENT ----------------- Huggins, J: 1. The appellant was charged with unlawfully selling dangerous drugs and with unlawful possession of dangerous drugs. He was convicted on both charges and now appeals against his convictions. 2. The evidence for the prosecution was that the police, acting on information received, went to the rooftop of 174 Wu Sung Street, Kowloon. One of them remained in hiding while the other went on to the rooftop and spoke to the appellant, who was outside the hut on the roof. This constable indicated to the appellant that he wished to buy "white powder" to the value of $10. He says that the appellant then went inside the hut and brought out some drugs. In fact he brought out 9 packets of drugs: 3 packets of these he handed to the officer in return for a marked $10 note. The constable then revealed his identity, the appellant sought to escape and a struggle ensued. The second constable came to his assistance and the appellant was arrested. The appellant was taken downstairs en route to the police station and on the way down there was some discussion, according to the police, whether the appellant had any more drugs. He said he did not have any more and the police officers apparently accepted that as being true. Certainly they say they made no search of the hut from which the drugs had originally come. 3. The case for the defence was that this was a conspiracy and that one Po Chai, who must have had some grudge against the appellant, planted these drugs and then went for the police; that he returned with one police officer and that Po Chai then asked for a parcel which was in the hut. The parcel was, according to the appellant, in the custody of his father-in-law. He obtained the parcel and handed it over as requested. He did not know what the contents were. The father-in-law gave evidence to corroborate this story. 4. The appellant said that the policeman who came with Po Chai was wearing uniform: "he was wearing a sort of Hawaiian shirt like mine". There has been some argument about this word "uniform". The magistrate pointed out in his findings and reasons that the appellant "retreated" from speaking of a uniform. Mr. Gunston fairly says there was no suggestion at any stage made in express terms that a police uniform was in question and he suggests that if the learned magistrate placed any weight on this retreat from the use of the word "uniform" he was wrong in so doing. I think it is far from clear that the learned magistrate did attach any appreciable weight to this fact, although it is true that his assessment of the appellant may have been affected in some way by his judgment that he was giving "hesitant and evasive answers". 5. However, the substance of the appeal is the suggestion that the learned magistrate failed to give consideration at all to certain factors which made the story of the prosecution unlikely. Mr. Gunston has emphasised the failure of the police to search for further drugs and he has emphasised the fact that the appellant is said to have brought out of the hut, and kept on his person, more drugs than were required for immediate purposes. Both these were matters which Mr. Gunston referred to in his very full address to the magistrate. I cannot agree that the fact that the learned magistrate has not expressly referred to these matters in his Statement of Findings means that he did not consider them. Lord Simonds said in Watts v. Thomas(1) that the omission to mention some of the evidence which has been given does not mean that it is a necessary and proper inference that the court has ignored that evidence and for my part I cannot believe that the learned magistrate did not give these factors the weight which he considered they deserved. It is, I think, submitted that they were in any event worthy of more weight than the magistrate can have given to them, but I am not prepared to say that the finding of the magistrate was manifestly against the weight of the evidence and I think the fact that the magistrate obviously was impressed by the hesitant and evasive answers relating to the uniform was insufficient to justify my interfering with this conviction. 6. Some reference was made to the statement by the learned magistrate that he did not believe the appellant's evidence that he was earning $600 a month as an itinerant barber. As it seems to me the nature of the appellant's occupation and the amount of his salary were not relevant to the fundamental issues but only to the credibility of the appellant as a witness. I see no reason to say that the magistrate was wrong in disbelieving this piece of evidence, but, in any event, I cannot think that it materially affected the verdict which was eventually reached. 7. The crux of the case was whether the magistrate believed the evidence of the two police officers who described the events on the rooftop. He thought that the police were giving truthful evidence and I am unable to say that that was wrong. The appeal must be dismissed. 29th November 1968. Representation: (1) (1947) A.C. 484. |