R. v. HO WING FU, MARK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 802 OF 1993

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J U D G M E N T

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1. This was an appeal against a conviction for simple possession of a small amount of cocaine and a small amount of cannabis.

2. The facts alleged against the appellant were that he was seen by two police officers in D'Aguilar Street about 4:30 a.m. on the 16th May 1993. The officers stopped and searched the appellant and found in one of his pockets a cigarette packet which contained the drugs. It was alleged by the officer who searched the appellant that the appellant conceded that he knew he had possession of the drugs. The appellant, in his own evidence, claimed that he did not know the drugs were in his possession and said that what might have happened was that someone either deliberately or inadvertently switched cigarette packets while he was in a bar in Lan Kwai Fong. There was evidence that he had left his cigarette packet on the bar, and that he was a heavy smoker.

3. Mr Swaine who appeared on the appeal argued basically two major grounds of appeal. The first was that the conviction was unsafe and unsatisfactory based, as it was, on the evidence of the one police officer who was able to testify to the fact that the appellant had acknowledged he knew he had the drugs in his possession. Suffice it to say that I found no merit in this ground of appeal. Indeed, it would, in my view, have been astonishing had the learned magistrate come to any other decision than that the appellant was knowingly in possession of the drugs.

4. Mr Swaine's second ground of appeal was to the effect that the stop and search by the officers was illegal being contrary to Article 14 of the Bill of Rights. This point was not taken in the court below. Article 14 states as follows:

"Protection of privacy, family, home, correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks."

The substance of his argument was that there was no evidence before the learned magistrate that the police officers had or considered they had any reasonable grounds to suspect that the appellant might have possession of an unlawful substance before they stopped and searched him. That being so, he argued, they could not rely on s.52(1)(f) of the Dangerous Drugs Ordinance, Cap.134. Section 52(1)(f) states as follows:

"stop and search any person, and search the property of any person, if -

(I) he has reason to suspect that such person has in his actual custody an article liable to seizure; or

(ii) such person is found in any ship, aircraft, vehicle, train, place or, premises in which an article liable to seizure is found."

He further argued that s.6 of the Bill of Rights, the remedy section, gave the learned magistrate a discretion to exclude the evidence if he found it had been obtained illegally. Section 6 states as follows:

"Remedies for contravention of Bill of Rights

(1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights."

Whether or not s.6 gave the learned magistrate a discretion to exclude the evidence of the search as being unlawfully obtained I did not have to decide, because it was my finding that the search was lawful.

5. The evidence was that the first of the police witnesses told the court that he had been briefed as to cannabis users before he went on patrol. The other police officer said that the appellant was walking unsteadily as if drunk, when he saw him in D'Aguilar Street. It was 4:30 a.m. I take judicial notice of the fact that the area, the Lan Kwai Fong general entertainment area, is notorious for drug abuse and is frequented by people of the same age and background as the appellant. The appellant does not deny he was slightly intoxicated.

6. It seems to me therefore though not expressly stated in the evidence, that there was every good reason why the officers should stop this man. That being so, I find that the search of the appellant was lawful and that the finding of the drugs on the appellant's person was the consequence of a lawful search. It did not constitute an unlawful interference with his privacy, and so did not offend against Article 14 of the Bill of Rights. For these reasons I dismiss this appeal.