HKSAR v. Nwosu Christopher Okechi

HCMA159/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 159 OF 2010

(ON APPEAL FROM KCCC 4820 OF 2009)

----------------------

----------------------

Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 28 May 2010

Date of Judgment : 24 June 2010

Date of Handing Down Judgment : 24 June 2010

----------------------

J U D G M E N T

----------------------

1.The appellant was convicted after trial on 4 January 2010 of possession of a dangerous drug[1].  There were 11.77 grammes of cannabis resin and 0.95 grammes of ketamine.  He was sentenced to imprisonment for 7 months.  He appealed against the conviction.

2.The prosecution case relied on the evidence of two plainclothes officers.  They stopped the appellant about 2 a.m., outside No.5, Cameron Road, Tsimshatsui.  During a body search, the officers found the dangerous drugs inside the right front trousers pocket of the appellant.

3.The appellant was represented by the Duty Lawyer Scheme.  He alleged that it was a frame up.  The dangerous drugs were not found on him.  He called a defence witness in support of his defence.

4.In his letter submitted to this court on the date of the hearing[2], the appellant pointed out that in paragraph 6 of the statement of findings, the magistrate knew that he was convicted by another court, on 4 January 2010, of perverting the course of justice.  He alleged that the magistrate was prejudiced in the subsequent review hearing[3].

5.In paragraph 6 of the Statement of Findings[4], the magistrate said :

“In conducting the Review on 28 January 2010, I had initially fallen into an error in making an enquiry into a certain matter which at a later stage of the Review I realized that I should not have made.  However, as a professional Magistrate, I had not allowed myself to be inappropriately affected by what was revealed in my enquiry.  The enquiry actually revealed more or less the same matter as was already set out in the DATC report, which was already available on 18 January 2010 and which I had already read before conducting the Review.”

6.In fact, at the time of the verdict on 4 January 2010, the magistrate was not aware of the other conviction.  When giving the brief reasons for verdict on 4 January 2010, the magistrate treated the defendant as of clear record.  He reminded himself of the standard Barrada warning[5].

7.The magistrate is an experienced Judicial Officer.  I am sure he would not be affected by the other conviction made known to him during the review.  I find no substance in this ground.

8.This case turned on the credibility of the officers, the appellant and the defence witness.  The evidence of the prosecution and the defence were diametrically opposite.

9.The magistrate had analyzed the evidence in detail.  He found the prosecution witnesses reliable and accepted their evidence.

10.The magistrate had also set out the defence evidence carefully and considered it in detail.  He rejected the evidence of the defendant and the defence witness. 

11.The magistrate had the chance of observing the witnesses during the trial.  He was in the best position to assess their credibility.  He accepted the prosecution witnesses after careful analysis.  He did not prefer the evidence of the prosecution rather than that of the appellant.  His approach is appropriate.

12.The appellant pointed out that there was no fingerprint evidence adduced in relation to the dangerous drugs.  This issue was raised during the trial.  I am sure the magistrate was alive to it.  Although the magistrate had not specifically mentioned this issue in the brief reasons and the statement of findings, this should not affect the conviction.  In my view, the absence of fingerprint evidence is not inconsistent with the possession of the dangerous drugs.

13.The magistrate was aware of the presumptions under section 47(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.  He pointed out that these presumptions only cast an evidential burden on the appellant[6].

14.However, what he said later at paragraph 73 of the statement of findings was not entirely clear.  The magistrate commented :

“I convicted the Defendant on the basis that there was enough evidence to discharge the Defendant's evidential burden of proof to rebut the two Presumptions but nonetheless the entirety of the evidence compelled me to draw the only logical inference that the Defendant had knowledge of the things inside his trousers pocket.  If I were wrong on that (that is, that there was enough evidence to discharge the evidential onus of proof) and the correct view is that the evidential burden was not thus discharged, it would have made no difference to the conviction of the Defendant.  If the two Presumptions were not rebutted, then the two Presumptions would have operated to affix the Defendant with knowledge of the dangerous drugs.  However, this was not actually the route I took in convicting the Defendant.”

15.Where there is evidence either in the prosecution case or raised by a defendant in relation to section 47 presumptions, the following scenarios arise :

(a)  If the trial magistrate finds that the evidence is true or may be true, the defendant is entitled to be acquitted.

(b) If the trial magistrate rejects the evidence, the presumptions operate to presume possession of the dangerous drug and knowledge of its nature.

(c) If the trial magistrate rejects the evidence, for some reasons he does not apply the presumptions, he may consider the prosecution evidence and draw an irresistible inference on possession and knowledge.

16.My reading of the statement of findings leaves me in no doubt that the magistrate had rejected the evidence of the appellant and the defence witness.  Scenarios (b) and (c) therefore apply.  Paragraph 73 indicates that the magistrate was not using the presumption.  He was in effect convicting the appellant by way of scenario (c) above.

17.Having considered the evidence of this case, I would have convicted the appellant by way of scenarios (b) or (c).

18.In passing, the dangerous drugs in this case were found inside the trousers pocket of the appellant, I doubt whether section 47 covers this situation.  In any event, even if the presumptions under section 47 do not apply, I would have convicted the appellant by scenario (c). 

19.In the circumstances, I am satisfied that the conviction is safe.  I dismiss the appeal.

Mr Martin Hui, Senior Public Prosecutor, of the Department of Justice,   for the Respondent

The Appellant in person, present

[1] Contrary to section 8 of the Dangerous Drugs Ordinance, Cap.134.

[2] 28 May 2010.

[3] Held on 28 January 2010.

[4] Page 9 of the appeal bundle.

[5] Page 43 of the appeal bundle, lines H to J.

[6] Page 44 of the appeal bundle, lines D to K and paragraphs 67 and 68 of the statement of findings.