R. v. CHUNG WING PIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 353 OF 1996

--------------

--------------

------------------------

J U D G M E N T

------------------------

1. The appeal in this case falls within an simple factual complex. The appellant has been convicted of trafficking in dangerous drugs. There was but one prosecution witness. He is a police officer. He said that he was on patrol in Elgin Street, Central on the night of 9th October 1995 with another officer. He saw two men, and the defendant was one of them. The other man turned out to be someone called Ho. The appellant was looking back from time to time and the two suspects stopped and the officers followed until they were about two metres from them. The suspects were not apparently in a position to notice the police officers because of the positioning of some stalls. This police witness described how he saw the appellant holding a white substance, that he suspected to be dangerous drugs. The man Ho then took the white substance in his left hand and inserted it into the left pocket of his trousers, and took a $100 note from his other pocket and gave it to the appellant who put it in his wallet. The police officers moved forward and searched the two men. A packet of white substance was found in the left trouser pocket of the man Ho, and the contents of that packet were later analysed and turned out to be the heroin which is the subject to this charge. From the appellant's wallet were found bank-notes. The appellant was cautioned, and he said that the man Ho had repaid him $100.

2. It was admitted by counsel for the appellant at the trial below that the packet taken from the other defendant (Ho) contained heroin. The officer added that he could see clearly all the actions and also "what they had in their hands".

3. The appellant did not give evidence nor was any evidence called on his behalf. The magistrate convicted him.

4. The magistrate has, in his Statement of Findings, accurately summarised the evidence. He concluded that the officer was a truthful witness, and he was satisfied beyond reasonable doubt that the officer saw what he said he saw, and concluded that the packet found on the man Ho was a packet supplied by the appellant.

5. It is noteworthy that in the submissions to the magistrate, counsel who appeared for the appellant submitted that it was not proved that the packet found on Ho was the packet or article that the officer had seen handed over, and that there was no evidence as to what else, if anything, was found on Ho. Indeed, that was the long and the short of the closing submissions before the magistrate. It was the core of the defence, and the magistrate cannot therefore have failed to have that point well in mind.

6. It is the point now taken by Ms Remedios in the course of this appeal, although she has supplemented that point by one or two further ones.

7. What the magistrate has done, it seems clear to me, well aware of the point that was taken, is to say that the conclusion he has drawn, in the circumstances described, is the only reasonable inference to be drawn. That inference, of course, did not have to be the only possible inference, it had to be the only reasonable inference; and it seems to me that that is the case here. This very experienced magistrate did not say so in terms, probably because he did not feel the need to do so.

8. In the circumstances, I see no real basis for allowing the appeal against conviction, and the appeal is dismissed.

9. [Appeal against sentence also dismissed].