Tsui Sum v. The Queen
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CACC000810/1977
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----------------- Coram: Morley-John, J. Date of Judgment: 15th August, 1977 ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of trafficking in dangerous drugs contrary to section 4(1)(a) of the Dangerous Drugs Ordinance, Cap. 134 and he was sentenced to a term of imprisonment for 3 years. It is against this conviction that he now appeals on the grounds that there was no evidence or no sufficient evidence whereon to found the said conviction and he also appeals against the sentence of imprisonment on the ground that such sentence is too severe. 2. Evidence was given by a police officer that he and a colleague DC 13634 were in Yung Kwong Lane. That he noticed the appellant sitting at the edge of the lane about 25 yards away from the police officer. That he saw an unknown Chinese male go up to the appellant and hand him something like a bank note and the appellant took something from his pocket, he couldn't say what the something was, and handed it to the Chinese male. That the police officer then ran over to the appellant and the other Chinese male and when he revealed his identity the other Chinese male ran away and escaped. That from the ground where the defendant and the other Chinese male had been standing the police officer then recovered four $10 notes and three packets of suspected dangerous drugs. 3. There was no evidence as to how the notes and the packets of dangerous drugs got onto the ground. Neither the unknown Chinese male nor the appellant was seen to throw them down. The appellant when searched was found to have nothing incriminating on his person. On the other hand the second police officer DC 13634 who was merely tendered for cross-examination, when cross-examined by the appellant said that it was he who searched the appellant and found nothing and that while he was searching the appellant PW1 went to a place about 10 yards from the appellant and there he picked up something, came back and showed to this Detective Constable 13634 $40 in cash and three packets of suspected dangerous drugs. 4. The appellant denied any implication in this matter he said he was sitting down by the side of the lane taking some medicinal pills which he had just purchased. Such pills were in fact found on his person and were recorded as the prisoner's property. 5. The learned magistrate in his Statement of Findings commented on the fact that the appellant as well as the other Chinese male ran away when being told the identity of the police officer and that the police officer apprehended the appellant and he PW1 took the appellant to the place where the appellant and the other Chinese male had been standing and there in the presence of the appellant recovered the $40 and the packets of dangerous drugs. According to the record no evidence to this effect was ever given. PW1 specifically stated that "the other Chinese male ran away". There was no evidence that the appellant ran away and further PW2 specifically stated that he was searching the appellant when PW1 walked away on his own to a place about 10 yards away and picked something up, thus indicating that PW1 did not take the appellant with him as found by the learned magistrate. 6. The learned magistrate stated that the evidence of PW1 was not entirely satisfactory and alone he would not have convicted the appellant on PW1's evidence, but having heard the answers given by PW2 to questions put in cross-examination by the appellant he had no hesitation in convicting him. However all that PW2 said was that he searched the appellant and found nothing and that while he was doing this PW1 went off on his own and about 10 yards away picked something up which turned out to be money and drugs. 7. The Crown agreed that there was no direct evidence that the money and the drugs found had ever been in the appellant's possession. The evidence pointed equally to the fact that they could have been in the possession of the other Chinese male or in the possession of neither of the men. No one was seen to throw the money and drugs to the ground. The Crown also agreed that there was no evidence to show that the appellant tried to run away as found by the learned magistrate. The evidence showed that it was the other unidentified Chinese male who ran away. 8. Under all the circumstances of this case I find that this conviction is unsafe and unsatisfactory. The appeal is allowed accordingly, the conviction is quashed and the appellant is discharged.
Representation: Appellant in person I. Polson for Crown/Respondent |