HKSAR v. Lam Moon Yiu

[English Translation – 英譯本]
HCMA 1000/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1000 OF 2007

(ON APPEAL FROM TMCC NO. 2569 OF 2007)

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BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 16 May 2008

Date of Judgment: 16 May 2008

Date of Reasons for Judgment: 20 May 2008

REASONS FOR JUDGMENT

1.The appellant was one of the three defendants in the present case.  They were all convicted on one count of possessing a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  The particulars of offence were as follows:

… [you] were charged that on 3 June 2007, in the male toilet inside ‘Green Box’ Karaoke, Manhattan Plaza, 23 Sai Ching Street, Yuen Long, New Territories, Hong Kong, [you] had in [your] possession a dangerous drug, namely 1) a folded HK$100 banknote containing 0.13 gram of powder containing 0.11 gram of ketamine, 2) a plastic bag containing 0.25 gram of powder containing 0.20 gram of ketamine.

2.The appellant pleaded not guilty to the charge.  He was convicted after trial and was sentenced to probation for 18 months.  The appellant appealed against conviction.

3.At the conclusion of the hearing, I dismissed the appeal but amended the particulars of offence by deleting “2) a plastic bag containing 0.25 gram of powder containing 0.20 gram of ketamine”.  I now set out the reasons for my judgment.

Prosecution case

4.The prosecution case was that a team of police officers went to an entertainment establishment to carry out investigation.  A sergeant noticed that the door of one of the five cubicles in the male toilet was locked.  Upon investigation, three persons were found hiding in the cubicle.  The sergeant ordered them to open the door.  In the meantime, sounds of a flush were heard from the cubicle.  The police officer shouted to the three persons, again ordering them to come out.  It was not until a moment later that the three defendants came out one after the other.  The sergeant stopped them from leaving, and other police officers came to his assistance.  The sergeant found a packet of a dangerous drug (0.25 gram of powder containing 0.20 gram of ketamine) floating on the water in the toilet bowl.  Beside the toilet seat, a folded $100 banknote was found containing a small quantity of white powder (0.13 gram of powder containing 0.11 gram of ketamine).

5.Under caution, the appellant indicated that the $100 banknote belonged to him originally.

Defence case

6.The appellant neither gave evidence nor called any witness at trial.

Reasons for verdict

7.The Magistrate’s reasons for verdict were as follows:

(IV) Analysis of evidence – reasons for accepting evidence of the prosecution

8.   Exhibit P4, a floor plan of the male toilet, shows that although there was limited space inside the toilet, it comprised five independent cubicles, and the three defendants could each occupy one cubicle without having to cramp themselves in one extremely narrow and small cubicle.  This indicates that the three of them were there and then doing some acts with a common purpose.

9.   On a careful reading of the sergeant’s evidence, at the material time the defendants locked the door of the cubicle from inside and refused to come out despite being ordered by the sergeant to do so.  It was not until the toilet had been flushed that they intended to leave and get away, and up to that moment the commotion had been going on for over one minute.  At that juncture, the sergeant found in the cubicle the plastic bag and drug, without any need for a search.  Those items had not been flushed away.  At the same time, the banknote and drug were laid bare before everyone’s eyes.  This shows that the defendants could not possibly have failed to see those exhibits while hiding in the cubicle earlier on.  It also shows that all the defendants not only had full knowledge of the fact that the drug was kept separately in the plastic bag and the $100 banknote, but also were fully aware of their criminal liability and hence attempted to flush the drug down the toilet with a view to destroying evidence of the offence.  What the defendants had said under caution serves to complete the picture – namely, that without any doubt the three defendants were jackals of the same lair who jointly possessed the relevant drug as one entity and who were equally culpable.  Each and every element of the charge has also been proved beyond reasonable doubt.

Grounds of appeal

8.In essence, the grounds of appeal advanced by Mr. Cheng, Counsel for the appellant, are that the appellant had no previous conviction record, and that, had the evidence been considered from a perspective most favourable to the appellant, the appellant’s joint possession of the dangerous drug in question with the co-defendants would not have been the only reasonable inference available.

9.Mr. Cheng concedes that, on all the facts of the present case, a reasonable inference to be drawn was that the appellant knew that the dangerous drug was there in the cubicle.  However, Mr. Cheng stresses that knowledge was not equivalent to joint possession.

10.Mr. Cheng sets out the following arguments:

1.1       There was no evidence to show that the applicant had at any stage had any contact with the drug in question.

1.2       There was no evidence to show what the applicant had seen or done inside the cubicle before the door of that cubicle was opened.

1.3       There was no evidence to show that the applicant was able to take away or obtain at will any part of the drug in question.

11.Mr. Cheng also points out that the following two scenarios are both reasonable and possible:

9.1       One of the three defendants (other than the appellant) was carrying the drug in question while having fun at the said entertainment establishment.  During that period of time, that person suggested going to the toilet to consume the drug.  The appellant decided to follow him – as he, out of curiosity, wished to have a taste of what it felt like to consume drug.  Inside the cubicle, when that person was about to consume the drug, he borrowed from the appellant a $100 banknote for the purpose of facilitating the consumption.  Soon afterwards, the prosecution witness knocked on the door and ordered them to open it.  On this account, despite his curiosity, the appellant had not yet been in contact with or possessed the drug in question.

9.2       The scenario is [more or less] the same as that described in paragraph 9.1, with the only difference being that the appellant, out of sheer curiosity, followed the others to the toilet to take a look at how they would consume the drug; and he himself did not intend to consume the drug together with them.

Respondent’s reply

12.Ms. Chan, Government Counsel for the respondent, submits that on the facts of the present case, the only reasonable inference was that the three persons jointly possessed the dangerous drug found in the cubicle.

Discussion

13.The magistracy appeal is conducted by way of “rehearing” on the basis of the evidence before the magistrate (and any fresh evidence that the appellate court allows to be adduced): see Chou Shih Bin v. HKSAR, FACC 11/2004.  In my view, as far as the facts of the case are concerned, the appellate court should bear in mind that the magistrate had the advantage of observing and hearing witnesses who gave evidence in court, whereas the appellate court can only rely on the transcript of proceedings.  The credibility and reliability of a particular witness is solely a matter for the magistrate to determine.  However, if the magistrate’s findings of fact are irrational, illogical or inherently improbable, or if the magistrate in dealing with the evidence had misquoted, omitted or failed to consider or analyse any material issue, the conviction will be rendered unsafe and unsatisfactory.

14.At law, a person is in possession of an object where, with the requisite knowledge, he has that object in his physical and actual custody or otherwise in his physical control and intends to have custody of or exercise control over that object as and when necessary (see the discussion on “possession” and the authorities cited at the beginning of para. 29-39 of the authoritative work Archbold Hong Kong 2007).

15.There can be no doubt that the appellant and the other two defendants had knowledge of the existence of the dangerous drug.  The question is: was the appellant in “custody” or “control” of the dangerous drug?

16.There was no evidence as to who of the three defendants carried the plastic bag which contained the dangerous drug found in the toilet bowl, who dropped the plastic bag into the toilet bowl, and who flushed the toilet.  The appellant had a clear record.  As far as the dangerous drug in the toilet bowl is concerned, taking a view most favourable to the appellant, a reasonable inference is that he was a bystander or was going to purchase or obtain the dangerous drug in the plastic bag, but the police officer arrived at the scene before he could take the dangerous drug in the bag in his custody or control.

17.On the other hand, as far as the $100 banknote which contained a small quantity of dangerous drug is concerned, the position is vastly different.  Although either of the two scenarios suggested by Mr. Cheng might well have taken place, the appellant obviously had control over the banknote as he was hiding inside the cubicle with two other males and was able to point out unequivocally that the banknote belonged to him.  As the appellant was able to state that the banknote belonged to him, in theory he could not possibly have handed the banknote to others long before he became aware of the existence of the dangerous drug.  From the fact that he was able to say that the banknote, which bore no identification mark, belonged to him, the only reasonable inference that can be drawn is that he handed over the banknote for the purpose of “holding” the dangerous drug before the banknote was so used.  The banknote belonged to the appellant, who therefore also had control over the dangerous drug on the banknote.  In light of all the circumstances of the present case, in particular the fact that the appellant exercised his right of not giving evidence to explain why the banknote was used for holding the dangerous drug, the only reasonable inference is that he not only had control over the banknote which “held” the dangerous drug, but also had the intention to have custody of or to exercise control over that banknote as and when necessary.  The appellant was in possession of the dangerous drug on the banknote.

18.For the above reasons, I have deleted the part of the particulars of offence that referred to the dangerous drug in the plastic bag.

Ms. Vivien Chan, Government Counsel, for the HKSAR.

Mr. Francis Cheng, instructed by Bobby Tse & Co., for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.