Kwong Chak v. The Queen
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CACC001319/1976
Coram: Morley-John, J. Date of Judgment: 6 January 1977 ----------------- JUDGMENT ----------------- 1. The appellant together with two others, was convicted of the offence of trafficking in dangerous drugs contrary to Section 4 (1) (a) of the Dangerous Drugs Ordinance, Cap. 134. He has appealed against his conviction on the ground that there was no evidence or no sufficient evidence whereon to found the said conviction. 2. The evidence produced on behalf of the Crown was that a Police Constable who in plain clothes and wearing a wig was keeping watch on a police informer who had been sent to buy dangerous drugs. The Police Constable saw the informer approach a Chinese male at the junction of Staunton Street and Chung Wo Lane. He said he saw this Chinese male who was apparently the 1st defendant in the case speak to the appellant. He didn't hear what was said. Latter he saw the appellant speak to the 3rd defendant in the case. There was evidence in this case that the informer gave the 1st defendant gave to the 3rd defendant. There was also evidence that the 1st defendant handed something to the informer but there was no evidence as to what exactly was handed to the informer. There was evidence that further up the lane some dangerous drugs were found hidden in a hole in a wall. 3. The appellant and the other two defendant were originally charged with possession of a dangerous drug for the purpose of unlawful trafficking. The first defendant was in addition charged with trafficking in a dangerous drug to which he had pleaded guilty at a previous hearing. After hearing the evidence the learned magistrate found that the evidence did not prove what was handed to the informer by the 1st defendant and the learned magistrate then amended the charge against the appellant and the 3rd defendant to trafficking contrary to Section 4 (1) (a) of the Dangerous Drugs Ordinance. The 1st defendant in this case who as I have said had previously pleaded guilty to trafficking gave evidence in the defence of the other two defendants. He agreed that he had pleaded guilty to trafficking but he said that the 2nd defendant had never spoken to him on the day in question. 4. In his judgment the learned magistrate said that the evidence of the Police Constable proved clearly that the appellant and the 3rd defendant were acting in concert with the 1st defendant and in his Statement of Findings the learned magistrate stated that as the appellant and the 3rd defendant were apparently drug addicts he assumed that they had been made use of because of their craving for drugs. 5. Before me the appellant stated that he had only lately been released from Shek Ku Chow Drug Addiction Treatment Centre and he had arranged to meet his former employer near the place where he was arrested in the hope of obtaining some money from him and he spoke with the 3rd defendant who also knew his former employer and asked him if he had seen him that day. The appellant said he certainly was not engaged in trafficking in dangerous drugs as he had only just left Shek Ku Chow. 6. With respect I can't agree with the learned magistrate that the evidence of the Police Constable proved clearly that the appellant was acting in concert with the 1st and 3rd defendants. The Police Constable stated that he saw the appellant speak to the 1st and 3rd defendants that later the 1st defendant handed something to the informer though there was no evidence what that something was. Later drugs were found in a hole in a wall further up the lane. It was only later when he was charged that the 1st defendant admitted that these drugs were his and that he was trafficking in them. Nothing was found on the appellant which in anyway connected him with drug trafficking. The circumstances may appear to have been suspicious but I am of the opinion that there was no sufficient evidence to prove beyond reasonable doubt that the appellant was guilty of trafficking in a dangerous drug and the appeal is allowed accordingly and the conviction and sentence of imprisonment quashed.
Representation: Appellant in person. S.P. Graham for respondent/Crown. |