R. v. LEE CHUN WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 442 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of one charge of possession of dangerous drugs. He was bound over in the sum of $1000.

2. The prosecution case depended solely on the evidence of one police officer. His evidence was short. He said on 5th September 1995 he was with other officers on high rise patrol in Block 6 Kwai Fong Estate. They went to the 19th floor first and then went down the stairs to the floors below. He said "... on 18th, we saw 3 males were standing near the staircase - once they saw us, they attempted to go downstairs - we went forward to stop them. I stopped, enquired and searched one of the males. I found 1 straw with 1 end open from the male right hand."

3. He cautioned the male and the male said to him "Ah Sir, give me a chance the white powder is not mine - it's given to me by Lau Ka Lok". Suspected dangerous drugs were found from the other 2 persons who were also arrested.

4. The Appellant did not deny that he was arrested on the staircase. He told the magistrate that he was asked to go there by one of the co-defendants who showed him a straw and put it in his palm. He was asked what it was and when he was told it was white power, he was scared. He said "I was scared at the time and I told him I would not try it - then the police came. When the police came the dangerous drug was still in my palm. I told them it did not belong to me. I have never seen dangerous drugs before. I have not tried it before."

5. The magistrate when he convicted the Appellant at the trial said

"Possession in this case is not in issue. The question I have to decide is what was in the mind of the defendant at the time he came into the possession of the drugs. I am asked to believe that at the very moment D2 told D1 that he did not want to try the drugs that the police arrived. This seems to me to be inconsistent with the evidence of PW1 who was virtually unchallenged. He said that when the police party arrived at the staircase the 3 defendants saw the police and attempted to escape by going downstairs but were stopped and intercepted by the police before they had a chance to do so. If D2 was acting innocently would he do this? I find he would not. If he was acting innocently surely he would hand over the drugs to the police officer before he was searched and tell the police 'Look - D1 has just given me this - I don't want it.'"

6. In his statement of finding the magistrate stated that he was aware that the Appellant had a clear record but despite his clear record. He did not believe him. He rejected the Appellant's case that he acted innocently when the drug was in his hand.

7. The Appellant now appealed against conviction.

8. The first ground of appeal is that the magistrate failed to give sufficient and careful evaluation of the Appellant's evidence and in these circumstances failed to set out the effect which the Appellant's good character and young age had upon his mind.

9. On this issue Mr Fu referred to Chan Wu Nam Crim. App. 274/92 where the Court of Appeal considered the extent to which a court should consider the good character of a defendant and deal with it in the judgment. Mr Fu referred to the following passage of the judgment of Mortimer J.:

"... In evaluating the case, the applicant's age and good character were of great importance. It was a main stay of the defence..."

Mr Fu further referred to the passage that followed :

"We preface our remarks by a reference to section 80 of the District Court Ordinance. This does not require a District Court Judge sitting without a jury to meticulously set out all obvious matters. But in this particular case, having regard to the vital importance of credibility to the defence and the reliance placed upon it and especially having regard to the point made in the defence that the applicant may have been acting as an innocent dupe throughout, it was incumbent upon the District Judge to carefully evaluate and in these circumstances to set out the effect which the applicant's good character and age had upon his mind. We are not to be taken as saying that it is incumbent upon a judge to give himself and to articulate what is called a 'Berrada Direction' in each case. ... Suffice it to say that in this case because of the importance of credibility, the judge should have carefully dealt with the effect of the applicant's good character... as to its effect upon the applicant's credibility and as to the effect upon the proof of guilt."

10. Mr Fu submitted that the magistrate did not sufficiently set out how he had considered the age and good character of the Appellant who had a clear record and was a 20 year old student. He also complained that the magistrate was prejudiced when he asked the Appellant at the trial if he was the oldest of all three implying that the Appellant was the ring leader.

11. The second ground of appeal is that the magistrate erred in concluding that an innocent defendant must have reacted in a particular manner when confronted by the police officer and any other reactions/behaviour of the defendant was evidence of guilt.

12. Mr Fu was referring to the magistrate's finding at the end of the trial that the Appellant must react in the manner as the magistrate thought he should react i.e. hand over the drug to the police officer. He further submitted that there were other inferences than guilt that might be drawn from the evidence.

13. On the issue of whether the magistrate had adequately considered the Appellant's good character and age, the magistrate had referred to the matter in his statement of finding. Although he did not specially state that he considered it in assessing the credibility of the Appellant, it is implicit from his finding that he had done so.

14. However, the prosecution evidence does not support the magistrate's finding that the Appellant was trying to escape with the other two men when the police officer came down the stairs. The evidence was the Appellant and the others attempted to go downstairs which could be for reasons other than escape.

15. The magistrate stated he did not believe the Appellant because he did not react in the manner he would expect an innocent person to react. There were other ways an innocent person in the circumstances of the Appellant at the time would react, bearing in mind the evidence of the Appellant that he was scared at the time. The magistrate drew the inference of guilt from the Appellant's reaction at the time which was not inconsistent with the reaction of an innocent person. The fact that the Appellant attempt to go downstairs is also not inconsistent with innocence. The fact that the straw was in the Appellant's palm is insufficient to convict him of possession if he did not have the intention to reduce it into his possession. In the circumstances, the conviction cannot be regarded as safe and satisfactory. The appeal is allowed. The conviction is quashed and the sentence set aside.