HKSAR v. Warsi Amir Sohail

HCMA 555/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 555 OF 2014

(ON APPEAL FROM KCCC 1853 OF 2014)

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Date of Hearing:  13 March 2015

Date of Judgment: 13 March 2015

Date of Handing Down Reasons for Judgment: 23 March 2015

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REASONS FOR JUDGMENT
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1.The appellant was convicted after trial of a single charge of possession of 140.97 grammes of cannabis resin and 51.22 grammes of cannabis in herbal form by Mr Chu Chung‑keung a Deputy Magistrate sitting at Kowloon City Magistrate court. He was sentenced to 6 months imprisonment. He now appeals both against his conviction and sentence.

The prosecution case

2.PCs 10278 and 10229 were on duty at around 2002 hours on 19 May 2014 at Middle Road Children’s Playground, Tsim Sha Tsui.  They gave evidence as PW1 and PW2 respectively.  PW1 saw the appellant some 20 metres away and when he approached him to about 10 metres he saw something protruding from his right trousers pocket.  Being suspicious he went to the appellant and revealed his police identity.  The appellant raised his left hand and put his right hand on his right front trousers pocket.  PW1 and PW2 grabbed his left hand and searched him the dangerous drugs referred to in the charge were found in a purple plastic bag inside that pocket.  Various exhibits were seized by PW2 and the appellant arrested.  PW2 corroborated the finding of the purple plastic bag in the appellant right front trousers pocket.  Also that it contained the dangerous drugs.

The defence case

3.The appellant gave evidence.  He claimed it took place around 6:40 pm. He had gone to the park to meet friends.  He saw the Chinese males approaching him, thinking they were gangsters he was afraid and took out 4 newly purchased fake watches from his right rear trousers pocket and threw them over the park wall.  He was then punched by 2 or 3 people.  PWs 1 and 2 then grabbed him.  He claimed that nothing was found in his right trousers pocket.  Police searched the flower beds.  Later PW2 came back and showed a large bag to PW1.  Only at the police station did the appellant become aware that there was cannabis in the bag.  He said he was a torture claimant.

Miscellaneous facts

4.PW1 agreed there was a search of the vicinity by other officers.  He did accept that when he revealed his police identity that the appellant did appear to raise his left hand and throw something away.  The search revealed nothing further.  At defence request he did place the dangerous drugs in the plastic bag and inserted it into the jeans pocket.  About 1/5 of the bag protruded. The evidence was not entirely clear as to what PW1 observed of the pocket and its contents prior to the search.

The findings

5.In the Magistrate’s evaluation of the finding, I am entirely satisfied that he understood and properly applied the test as to proof beyond all reasonable doubt.  He fully allowed for the appellant’s clear record.  I have considered the Magistrate’s approach to the evidence and why he accepted the evidence of the 2 prosecution witnesses whilst rejecting the version of the appellant.  He found the version put forward by the appellant to be “not reasonable”.  This is perhaps not the clearest of rulings and the language used not of the best but by this I can only deduce this to be saying that he found the appellant’s version to be untrue.  On the other hand he did believe the 2 police officers’ versions and therefore convicted the defendant offence on the lesser charge of possession of dangerous drugs instead of the more serious charge laid, of the trafficking. I can find no fault with the verdict nor the path taken to arrive at that verdict. Therefore I dismiss the appeal against conviction.

The appeal against sentence

6.Having correctly convicted the appellant the Magistrate unfortunately imposed a sentence which even the respondent accepted was manifestly excessive and wrong in principle.  The conviction was for the lesser offence of possession not the original offence of trafficking therein.  Indeed given the quantity and nature of the narcotic 6 months would have been a robust sentence of trafficking.  Therefore I agree both with the appellant and the respondent that the appeal against sentence be allowed.  I am told the appellant has served 22 days imprisonment already so to allow his immediate release or to put it more accurately to avoid his return to prison, I set aside the sentence of 6 months imprisonment and substitute a sentence of 21 days.

Mr Pierre Lui SPP (Ag), of the Department of Justice, for the respondent

Mr Phillip Ross, instructed by Massie & Clement, assigned by DLA, for the appellant