HKSAR v. LAW KAN FAI LUKE

HCMA304/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 304 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of possession of dangerous drug, namely, one packet containing 0.28 grammes of a mixture containing 0.16 grammes of heroin hydrochloride. He now appeals against the conviction.

2. At the trial, two police officers gave evidence and the Appellant also gave evidence. At the conclusion of the trial, the Magistrate convicted the Appellant, and his major findings could be found in his Statement of Findings. He said he accepted PW1 and PW2 to be honest and reliable witnesses and continued :

"I was satisfied that the events took place in the way as narrated by them. I accepted their testimonies in full. I was also satisfied that the lighting condition was of sufficiently good quality, that at the distance of 16 to 17 feet away, PW1 clearly saw the full unobstructed course of the pellet dropping out from the defendant's trousers pocket and rest on the ground, that he immediately picked it up and showed the defendant before making the arrest, and that there was no one walking past the spot at that moment."

3. From the transcript, however, I find a number of matters that give rise to concern :

1. It is not at all clear from the evidence of PW1, who gave the only evidence as to the falling of the pellet onto the ground, as to how the Appellant turned his body. PW1 seemed to say that when he first saw the Appellant, the Appellant was facing him obliquely and was in the course of turning in a clockwise direction. In the course of the turning, the Appellant's left hand was getting out of his trousers pocket. A white dot was falling onto the ground and bounced several times.

2. PW1 said that when he first spotted the Appellant, the Appellant was facing him and turning to his (that means the Appellant's) right with his left shoulder facing PW1. He was turning in a clockwise direction and made a less than 90°clockwise turn.

3. PW1 said the Appellant's left hand was clenched in a fist before he saw the falling of the white object, and that was why PW1 could not at that moment see the size of the white object, implying that the object fell from the Appellant's hand and not from the trousers pocket.

4. PW1 said there were people sitting on the pavement around the tables of a restaurant. The restaurant's lighting lit the pavement area well and he was able to notice this white object falling and bouncing. Nobody was passing by the Appellant at the moment.

5. In re-examination, PW1 said that there were people walking there near the Defendant but not many. PW2 also said that several people were walking along the street in the vicinity.

6. Both PW1 and PW2 made a mistake about the number of the street outside which the Appellant was arrested, and they only realised the mistake when PW2 was informed that CAPO officers could not locate No.11 Sheung Ling Street since that number did not exist in that street. This resulted, of course, from the Appellant's complaint to CAPO. This common mistake and later realisation of the mistake showed that at least the two officers discussed about their evidence before the trial.

7. PW2 said that he observed the environment of the place where the Defendant was arrested and obtained No.11 in order to notify the driver of the police vehicle to locate them for transporting the Appellant to the Police Station, but since that number was a mistake for No.44, there must be some doubt as to how the driver was able to locate them. Further, PW1 said in evidence that he brought the Appellant to outside No.48 of the same street to wait for the vehicle which must differ substantially from PW2's version of his purpose of providing the No.11 to the driver.

The Magistrate came to the findings that :

a) the pellet dropped out of the Defendant's trousers pocket; and

b) no one was walking passed the spot at the moment.

4. However, the evidence was that there were people sitting around tables of the restaurant where the Appellant was first spotted by PW1. There were also people walking in the vicinity of that spot, though not passing by the Appellant at the very moment when PW1 saw a white object falling onto the ground and bouncing. PW1 did not say that the object dropped out from the Appellant's trousers pocket as found by the Magistrate.

5. Though mentioning Defence Counsel's submission that there was the common mistake of the number of the street, the Magistrate did not consider this point. He apparently treated that as nothing sinister. He did not, for example, consider whether in the context the prosecution witnesses must have discussed about the evidence. If PW1's description of the Appellant's turning was correct, there was an implication that the Appellant was turning away in order to avoid meeting with him and his colleague. It would be strange, on that basis, that the Appellant was trying to throw away the pellet when he turned and exposed his action to the best vision of the uniformed police officers.

6. In all the circumstances of this case, I am left with the lurking doubt whether the events as described by the prosecution witnesses were entirely correct or true, and I feel that the conviction is unsafe or unsatisfactory. I therefore allow the appeal. I quash the conviction and set aside the sentence.