HKSAR v. Khan, Sadam Biland

HCMA 903/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 903 OF 2010

(ON APPEAL FROM KCCC 3584/2010)

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BETWEEN

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Before: Deputy High Court Judge Andrew Chan in Court

Date of Hearing: 16 February 2011

Date of Judgment: 16 February 2011

Date of Reasons for Judgment: 18 March 2011

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of one count of possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance. He appeals his conviction.

2.At 5:20 am on the material date, while PW1 and PW2 were conducting anti-narcotics patrol, they saw the appellant acting furtively outside a building.  PW1 followed the appellant into the building.

3.On the first floor of the building, PW1 saw the appellant squat next to a rubbish bin and take out a transparent plastic bag from the bin.  The appellant was intercepted.  The plastic bag was later found to contain five plastic bags which contained 1.16 grammes of cocaine.

4.The appellant elected to give evidence and stated that he went into the building to visit a friend who lived on the ground floor.  When he was inside the building, he noticed that someone used a torch to flash on him.  Being afraid, he went up to the 1st floor.

5.He was then intercepted by three police officers who asked the appellant to take off his clothes for a search.  Nothing was found on his body.  Not long, one of the three officers returned with a package. He was told to admit the ownership of some drugs.  The appellant refused and insisted that he was not a drug dealer.

6.The appellant did not file any written grounds.  He simply states that the drug did not belong to him and he was not addicted to any drug at the time.

7.The thrust of the appellant’s case is that the drug was planted by police officers.  In that light, the entire case turns solely on the credibility of the police witnesses.  The magistrate, after carefully assessed all the evidence, came to the conclusion that the police officers were telling the truth and was satisfied that the prosecution had proved their case. 

8.The magistrate rejected the appellant’s evidence making particular reference to the unusual hour of his visit to a friend’s house, the unsatisfactory explanation given for his presence on the first floor and the dubious identity of his friend.

9.The magistrate was entitled to reject the appellant’s evidence.  The appellant was correctly convicted.  The appeal against conviction is wholly devoid of any merit and must be dismissed.

Mr. Andrew Cheng, Public Prosecutor, for the Respondent

The Appellant, in person