The Queen v. Lam Hon Keung
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CACC000128/1983 Dangerous drugs - possession - whether police did actually see the defendant discard the package - inference drawn from unexplained affluence and drug selling - conviction unsafe and appeal allowed. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 128 of 1983 ------------- BETWEEN
--------- Coram: Hon. Barnes, J. in Court. Date: 11 APR 1983 ___________ JUDGMENT ___________ 1. The Appellant pleaded not guilty to a charge of possession of dangerous drugs for the purpose of unlawful trafficking At his trial the evidence against him, apart from the formal proof of the analysis of the drugs, consisted of the testimony of two police officers. One was a sergeant and the other a constable. Each testified that he was an eye-witness to an act of discarding by the Appellant of a package, a package which undoubtedly contained dangerous drugs in sufficient quantity to raise the rebuttable presumption of unlawful trafficking. The real issue at the trial was the is sue of possession and that issue became, in simple terms, whether either police officer had undoubtedly seen the Appellant discard the package. 2. It was common ground that at the material time the Appellant was seated at a table on the pavement outside. a restaurant at some time between 7 a.m. and 8 a.m. on the day of the alleged offence. The sergeant said in evidence that he saw an old (the underlining of "old" was done by the learned trial magistrate when making a note of the evidence) Chinese man approach the Appellant and sit down at his table. According to the sergeant, he and the constable then approached the table. When they were within seven or eight feet of it he saw the Appellant "throw something away with his left hand underneath the table" (the underlining is the magistrate's). The sergeant said he revealed hid identity to the Appellant and told the constable to retrieve the package. 3. The constable said in evidence that he saw two Chinese males aged 30 approach the Appellant and sit with him at the table. The one who sat on the Appellant's right hand side produced a wallet. According to the constable, he and the sergeant then approached the table. When they were about ten feet away the Appellant saw them. The Appellant
4. The Appellant said in evidence that he was sitting with two "other customers of the restaurant" when the sergeant came, sat by the table and said: "I haven't seen you for more than a month". The Appellant said that he and the sergeant had met before and that on the previous occasion the sergeant had threatened "to plant something" on the Appellant but did not pursue the threat. On this occasion he asked the Appellant "to get him a case". The Appellant told the sergeant that he had certain family problems which prevented him from helping. One of the three or four people who were sitting behind the sergeant at the time then produced a packet which was handed to the sergeant. According to the Appellant the following dialogue then ensued:
The Appellant said that although he had not paid his bill he nevertheless stood up and "walked to the pavement" (sic). The police officers followed him and eventually arrested him. 5. It was common ground that the Appellant complained to the sergeant's superior on arrival at the police station. The sergeant and the constable also said in evidence that after being cautioned at the scene he denied that the packet was his and alleged a "frame-up". 6. In his Statement of Findings the magistrate said this:-
7. The magistrate's "strand (A)" was shown to be tenuous by the following "Additional Ground of Appeal":-
8. The sergeant said in evidence that "the vicinity of the restaurant was a known locality for dangerous drug, transactions". If the two customers shared that knowledge with the sergeant, they would not have been alarmed to hear the sergeant seeking the assistance of a pivotal figure in that "drug scene" in "getting a case". The dialogue reported by the Appellant reveals an approach by the police for his assistance. The only suggestion of "planting" came from himself when he questioned the propriety of his arrest but that is followed by soothing talk from the sergeant and a request for assistance. The suggestion of "planting" arises from the production of the packet. It was common ground that that was the Appellant's reaction - whether feigned or genuine - when the packet was produced. It was never alleged by the Appellant that the sergeant uttered threats to "plant" in the presence of the "independents". There was, therefore, nothing inherently improbable about such a conversation as the Appellant reported, taking place at such a scene as the sergeant described. The Appellant's defence was a "frame-up". But, on his evidence, the action leading to that "frame-up" did not begin until after he had left the table. His version might have been a complete fabrication or a mixture of fact and fiction but, as a version of events, it was not so repugnant to common-sense as to be incapable of being true whoever related it. There was nothing, therefore, in the Appellant's version of what took place at the table so inherently improbable as to indicate falsity. To the extent that he thought there was the magistrate, in my view, misdirected himself. As regards "strand (B)" the Appellant alleged that
9. Counsel for the Appellant argued that the magistrate can take judicial notice only of notorious facts. She posed the rhetorical question: if it were a notorious fact that the amount was $400.00 per month how was it that the probation officer who reported to the magistrate after conviction believed the amount to be $2,000.00 per month? Counsel for the respondent argued that the amount is probably ascertainable from social welfare legislation and the magistrate was entitled to draw upon that source to fill the well of his "judicial knowledge". I do not think it necessary to consider whether or not he could find that the amount was $400.00 because the "strand" had only an illusory strength in supporting the conclusion the magistrate appended to it. An unexplained source of substantial income may suggest the likelihood of an income from an unlawful source which in turn may suggest the likelihood of an income from selling drugs. Unexplained affluence may, therefore, be an important "strand" of circumstantial evidence but it is only where it is intertwined with other strands of circumstantial evidence suggesting that sane likelihood that it can gain sufficient strength to support a compelling inference that that affluence and drug selling are causally connected. By itself, an unexplained source of income was not a sure indicator that the Appellant was lying when he alleged that the police version of his arrest was untrue. The magistrate did not, of course, regard that factor in isolation. But the only support he found for it was the "strand" which was equally insubstantial. 10. The result is that I am of the view that the magistrate misdirected himself in coming to the conclusion that the Appellant's allegation was false. Had he not done so he may have formed a different view regarding the version of the two police officers and had a reasonable doubt as to whether they did actually see the Appellant discard the package. In the circumstances, therefore, I regard the conviction as unsafe. 11. I allow the appeal and quash the conviction and sentence. I order that the suspended sentence which was activated as a result of the conviction be restored to its original suspended form.
Representation: Mr. McMahon, Senior Crown Counsel for the Crown. Mrs. Barbara Kaplan (D.L.A.) for the Appellant. |