HKSAR v. LEE SHEUNG HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 41 OF 1998

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on one charge of Possession of Dangerous Drugs; the drugs concerned were 25 tablets containing 0.47grammes of midazolam maleate and 4.19 grammes of mixture containing 1.13 grammes of heroin hydrochloride.

2. Customs and Excise officers executed a search warrant and searched Appellant's family home. The Appellant was asked if there was anything in the premises and he pointed out a room saying there was something in the room, it was for his own consumption and had nothing to do with his family members. The items eventually pointed out were dangerous drugs.

3. The chief ground of appeal is that the Magistrate relied upon these alleged admissions, made by the Appellant prior to the finding of the dangerous drugs, which were not supported by any record in either the witnesses' notebooks or the witness statements of the two Customs and Excise officers. There was no acknowledgment of those admissions being made in any document signed by the Appellant.

4. P.W.1 said that he asked if there was anything on the premises as the officers walked in. Appellant pointed out a room saying there was something in the room, it was for his own consumption and had nothing to do with his family members. Later he led the officer to the room and told him there was something on the mattress on the upper bunk.

5. The first witness agreed that he had never reduced the pre-caution verbal admission to writing and had it signed by the Appellant. He said the reason he had not done so, was that at the time he had not found any evidence which showed that the Appellant was in possession of dangerous drugs so he didn't arrest and caution him. Later, he said that he considered he only needed to record what the Appellant said after he was arrested and cautioned. It was suggested by defence counsel that the reason there was no record of the admission was that it had never been made. That was denied by the officer.

6. The evidence of the second prosecution witness was almost identical. He made no record of the pre-caution admission in his statement, or anywhere else. He said he realised that it was an important piece of evidence but he did not write it down in his statement because at the time the admission was made the Appellant had not yet been cautioned.

7. Later he said that he did not think it was necessary to note it in any record, but denied that Appellant had never made these admissions. Defence counsel at the trial submitted that the case rested or fell on the evidence of the two officers and that the key issue was the verbal admission. The thrust of counsel's submission was that the Magistrate could not possibly rely on the admissions because it was unsafe to do so, given they had not been recorded anywhere.

8. The Magistrate gave brief reasons for his decision at the end of the trial and later confirmed them in his Statement of Findings. Those findings indicate that he was fully aware of counsel's point and of the desirability of any such verbal admission being reduced into writing in the ordinary course of events. In his findings, he said that he had reminded himself that the fact the officers failed to record the verbal admissions did not necessarily mean the admissions were not made, notwithstanding the obvious need for prudence and the high desirability of investigators such as PW1 and PW2 recording the same in writing as soon as practicable.

9. He noted that in P.W.1's written statement, he did refer to the Appellant "indicating" to PW1, which indication led PW1 to seize the red packet containing the drugs in the room. Having heard all the evidence he was satisfied that PW1, albeit in vague and general terms, was referring to the verbal exchange with Appellant prior to the drugs being found. He was satisfied that such verbal exchange did take place as PW1 had testified orally, notwithstanding that it was not explicitly recorded in his statement.

10. The Magistrate rejected defence counsel's submission that such questions as were asked by PW1 of the Appellant should have been preceded by a caution. He considered that unnecessary because at the time the questions were asked no drugs had been found and PW1 could be regarded as merely making preliminary enquiries.

11. Ultimately, this was an issue for the Magistrate to decide and he had to base his decision on the credibility of the two Customs and Excise officers. I am satisfied that the Magistrate carefully considered the evidence and was aware of the possible dangers in convicting on the basis of admissions which had not been recorded. He made it quite clear that investigators should record such admissions, but nevertheless he was satisfied that the officers were telling the truth about these admissions.

12. Having considered the transcript and the Magistrate's findings, I am satisfied that this is a safe conviction. The appeal against conviction is dismissed.