THE QUEEN v. CHEUNG HEI LAI

Mag. App. 373/87

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Appellant was convicted in the Magistrates Court on 3 charges, two of possession of drugs for the purpose of unlawful trafficking, and the third of trafficking in dangerous drugs. The prosecution evidence was that the Appellant had been seen by a police officer posted on the roof of a building across a street from a park in the evening of the 6th May 19860 That police officer said that he saw her speak to a man and then walk across the park to a flower bed; then return and hand something to the man who walked away. The police officer said that by his beat radio he contacted colleagues and then arranged for her to be intercepted. She was intercepted and in a subsequent search of her person drugs were found in her possession and also in possession of the man.

2. The Appellant gave evidence in which she explained her presence in the vicinity of the park and gave an innocent explanation of her presence, an explanation that involved no transactions of any kind involving drugs.

3. The learned magistrate did not believe the Appellant. One ground of appeal is that he was not justified in finding her evidence incredible and Mr. Poll, counsel for the Appellant here - he was not the counsel at the trial - has made a detailed analysis of the magistrate's findings and of the evidence, with a view to demonstrating that the magistrate was wrong in coming to his conclusion. He has also referred to two statements made by the Appellant to the police officers which were admitted in evidence. He has submitted that one of them should not have been admitted.

4. His other substantial ground of appeal is that there were such deficiencies and discrepancies in the evidence of the observing police officer that the magistrate should not have relied upon his evidence.

5. Mr. Poll does not submit that either statement was inadmissible because it was involuntary. His submission is that the statements should have been ruled-inadmissible on a proper exercise of the magistrate's discretion. I can find nothing in the evidence to indicate that the magistrate was wrong to exercise his discretion in relation to either of those statements.

6. Once the statement exhibit PlO forms part of the admissible evidence against the Appellant, all the other criticisms which Mr. Poll has made about the prosecution evidence are of no avail. No matter how mistaken the observing police officer may have been, the fact of the matter is that, the Appellant in exhibit PlO confirms that she was the person the police officer observed. Her statement not only confirms the evidence of the police officer but is in itself enough to support the conviction.

7. In my view therefore there is no merit whatsoever in the appeal against conviction and that part of the appeal is dismissed.