HKSAR v. DE CUIRTEIS, SEAN ROBAIRD

HCMA 270/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 270 OF 2011

(ON APPEAL FROM ESCC 4553 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  On 13 January 2011 the appellant was convicted by Mr Jason Wan at Eastern Magistrates Court of a single charge of possession of a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, 134. He was placed on probation for 12 months. He now appeals against his conviction only.

The prosecution case

2.  On the evening of 11 September 2010 two police officers were on uniform patrol in Lan Kwai Fong in Central.  When they entered the rear alleyway at 41 D’Aguilar Street they saw with the aid of a torch a male who was standing close to the wall of the lane.  The officers were suspicious and accordingly stopped the male and searched him.  That male was the appellant.  From the rear right pocket of the shorts the appellant was wearing they found a small plastic bag measuring 2.5” x 1.5” containing what was later found to be 0.18 grammes of powder containing 0.08 grammes of cocaine.  The appellant was arrested and other police officers and a police vehicle summoned to the scene. The appellant, who was cooperative throughout, was subsequently conveyed to Central Police Station.

3.  Save for whether it had been made clear to the appellant that he was under arrest before leaving for the police station, those essential facts were not in dispute.  On the face of it, this was a simple case of police officers on routine patrol stopping and searching a suspect on whom drugs were found.  Absent any evidence to explain these essential facts, certain obvious inferences as to knowledge and possession on the part of the appellant would have flowed.  Accordingly, a proper evaluation by the magistrate of the defence case was critical to the ultimate determination of the appellant’s guilt.

The defence case

4.  The appellant gave evidence and called a defence witness.  He testified that on the day in question, which was a Saturday, he had been on an organised junk trip to Sai Kung with 30 to 35 other people, some of whom he knew but most of whom were strangers to him.  Towards the end of the afternoon the appellant had dived off the boat and hit his head on the seabed.  When he got back on board the junk, he realised that he had chipped his tooth and had blood coming from his head.  His friends were concerned about possible concussion and since he was by this time feeling cold and shivering, he was given his T-shirt and towel by DW2 who suggested that he go below deck and get changed.  Accordingly, the appellant went down to the cabin where a number of bags and personal belongings of those on the junk trip had been placed.  However, having dried himself and put on his T-shirt, he was unable to locate his own bag which contained his shorts.  So he decided to put on a pair of shorts, which were lying on a couch in the cabin, until he could locate his own shorts.  Before putting on the shorts, he had judged from their weight and feel that there was nothing in them.  Thereafter, he went back up to the deck where he continued looking for his bag with the help of DW2 but neither was able to find it.

5.  In due course the junk returned to Sai Kung arriving at the pier at sometime after 6 p.m.  From Sai Kung the organisers of the junk trip had laid on a coach which was to take everyone to a bar in Lan Kwai Fong.  By the time the appellant left the junk to board the coach he had found his own bag which contained his shorts.  As it turned out, it had not been in the cabin but had been hidden under a number of other bags on deck.  Nevertheless, he decided to keep wearing the shorts he had found in the cabin.  The coach left Sai Kung at about 6:30 p.m. and the party arrived at the bar in Lan Kwai Fong at about 7:30 p.m.  The appellant estimated that perhaps only five people who had been on the junk and in the bus did not continue on to the bar.  However, the appellant and his friends, including DW2, remained together and went into the bar; the appellant bringing his bag with him.

6.  At about 8 o’clock the appellant began to feel unwell.  He subsequently went into the rear lane where he was sick.  Just as he was preparing to go back into the bar, the police appeared on the scene.

Areas of dispute

7.  There was some dispute as to what had taken place when the police made enquiries of the appellant in the alleyway.  The appellant testified that he was surprised when the officers found the packet in the rear pocket of his shorts and he endeavoured to explain that they were not his shorts and the circumstances of how he came to be wearing them that day.  In order to show the officers his own shorts he asked if he could call a friend in the bar to fetch his bag.  That friend was DW2.  The officers accordingly permitted him to use his mobile telephone, as a result of which DW2 arrived in the alleyway with the bag.  Upon the appellant’s instructions, DW2 opened the bag and took out the contents which included his towel and swimming trunks, which were wet, and a pair of shorts, which were dry.  The appellant reiterated in the presence of DW2 that the shorts he was wearing, and in which the dangerous drugs had been found, were not his shorts.

8.  Both officers accepted that sometimes they could not fully understand what the appellant was saying, with one officer saying he could understand simple English, the other that he could handle basic conversation in English; although the appellant himself formed the view that they did understand what he was saying because he had tried to build up a level of dialogue in order to make sure that they understood him.  However, both officers disagreed with the suggestion that the appellant had told them the shorts did not belong to him or that he had explained the circumstances of how he came to be wearing them.  Both in fact said that the appellant had made no response when the drugs were found and shown to him.  The first officer agreed, however, that DW2 had indeed arrived in the alleyway with a bag which was then opened but he could not recall whether the contents were wet or dry, or short or long.

The magistrate’s reasoning

9.  As I have observed, in the light of the essential facts of the prosecution case which were not in dispute, a fair evaluation of the defence case, and in particular of the appellant’s explanation, was critical to a proper determination of the charge.  Having set out the salient parts of the evidence of the appellant and DW2, the magistrate concluded that neither had told the truth.

10.  In relation to the appellant’s evidence, the magistrate gave effectively four reasons why he was rejecting the appellant’s account.  Firstly, he did not believe that when the appellant was unable to find his own bag he should have come across a convenient pair of shorts which happened to fit him, but which also happened coincidentally to have a packet of dangerous drugs in the rear pocket. Secondly, he did not accept that if the defendant really had put on a pair of somebody else’s shorts he would not have then checked whether there was anything personal left in the pockets.  Thirdly, if the circumstances were as the appellant had described, he did not believe that the appellant would have made no attempt over the course of the next few hours to find out whose shorts he had borrowed.  Fourthly and correspondingly, he did not believe that the real owner would not be asking around over the same duration of time for his missing shorts.

11.  In relation to DW2, the magistrate rejected his evidence for the same reasons, concluding that he must be lying as well in order to help his friend the appellant.

The appellant’s grounds of appeal

12.  Mr Graham Harris SC, in an attractive address, has attacked each of the reasons given by the magistrate for rejecting the evidence of the appellant and his witness.  He argues that it would not be unusual in the nature of such junk trips for odd items of clothing to be lying around in a cabin below deck.  Furthermore, the appellant did in fact testify that he was able to judge from the weight of the shorts that there was nothing in the pockets before putting them on.  He submits that the packet of cocaine, which I have inspected, was so small and thin that the appellant could hardly be criticised for not detecting it.  That the appellant would not have made enquiries of others on the junk or in the coach or in the bar as to who the owner of the shorts he was wearing was can be understood in the context of the buoyant, drink fuelled informality of the occasion, and given that his head injury may have contributed to him not acting as one might otherwise reasonably expect.  In relation to the production in the alleyway by DW2 of the appellant’s bag, it is submitted that that event could only be consistent with the appellant having asked his friend to bring it to the scene so as to impress upon the police that he was not wearing his own shorts because his own shorts were in his bag.

13.  In relation to DW2’s evidence, it is submitted that it did not follow that simply because the magistrate did not believe the appellant, he had also to reject DW2’s evidence.

14.  Mr Harris also points to the test results of two samples of the appellant’s urine (exhibits D3 and D4) drawn or obtained on 18 September and 16 December 2010 respectively.  Both confirmed that the appellant’s urine samples tested negative for a spectrum of drugs including cocaine.  He complains that the magistrate was wrong to say he attached no weight to this evidence, which tended to support the fact that the cocaine found in the shorts could not have belonged to the appellant.

Consideration

15.  I have examined the evidence and the magistrate’s conclusions in the light of these and other criticisms, giving due deference to the magistrate who had the advantage of seeing and hearing the evidence of the appellant and his witness.  In my judgment, the magistrate’s reasoning is unassailable.  The notion that the appellant would coincidentally have found a stray pair of somebody else’s shorts when unable to find his own which happened to have a packet of cocaine in the rear pocket, put somebody else’s shorts on and then continued to wear them on the junk, on the coach and in the bar for a period of what must have been well over three hours without wanting to change back into his own shorts, even after he had been reunited with his bag before leaving the junk, without ever enquiring whose shorts they were and without anyone coming up to him and asking for the return of their missing shorts (or at least the illegal and hardly inconsequential contents of the back pocket) throughout this entire period, was not just improbable: it was incredible.

16.  I have asked myself whether the appellant’s condition after injuring himself might explain what he did or did not do and so make this series of events less incredible.  However, it seems remarkable that if he was feeling so unwell after injuring himself, the appellant should have chosen to go on to and remain in the bar after arriving in Central from Sai Kung rather than returning to his home in Wanchai.  Had there been any real suggestion of his being sick or feeling unwell at the scene or at the police station, I would have expected the appellant or his lawyer at the police station to have brought that fact to the attention of the police, who would have been the first as a matter of precautionary routine and procedure to ensure that he was immediately seen by a doctor or taken to hospital.  I am alive to the fact that the appellant did of his own volition visit the Ruttonjee Hospital the following day at 1.18 pm, according to exhibit D1, where a CT scan and other procedures were done and where he remained overnight for observation.  However, I do not believe that this fact accounts for what is an otherwise extraordinary sequence of events and coincidences the previous day.  Moreover, at no stage did the appellant in his evidence suggest he was disadvantaged or disorientated in his dealings with the police either at the scene or later at the police station as a result of his injuries.  On the contrary, he was able to give an entirely lucid account both at the scene and in his evidence of what happened that afternoon and evening.

17.  As for the bringing of the bag to the scene by DW2, the evidence of the first officer was that after the arrest and after the police vehicle and other officers had arrived at the scene, the appellant requested to contact his friend in order to get back his personal belongings before going to the police station.  DW2 confirmed that by the time he arrived in the alleyway with the bag the appellant was together with four police officers.  I would have been surprised if the officers had not yielded to this request and even more surprised, in the circumstances of what they had just found, if they had not been interested to see what else was in the appellant’s possession.  Indeed, upon producing the bag, DW2 said it was the officers, and not the appellant, who asked him to open the bag and remove the contents.

18.  As for the magistrate’s evaluation of DW2’s evidence, the reality is that if the magistrate did not accept the appellant’s explanation for the extraordinary series of circumstances and coincidences which resulted in him having a packet of cocaine in his back pocket, DW2’s testimony was similarly incredible.  Furthermore, when in examination-in-chief the witness was questioned what his response had been when an officer asked him if he recognized the shorts the appellant was wearing, he said his answer:

“A. Was he had them on the junk we were on earlier today and that’s all I said.”

Under cross-examination by the prosecution, he went rather further and claimed to have told the police that:

“A. …these were the shorts that he found on the junk.”

I am bound to observe that neither police officer gave evidence that DW2 had said any such thing to the police at the scene nor was it put to the officers in cross-examination that he did.  The witness went on to agree in any event that that was what the appellant had told him but he also asserted that he had not seen the shorts the appellant was wearing before in the flat they were sharing.  In my view, the magistrate was perfectly justified in finding that DW2 was not telling the truth on the essential issue in order to help his friend.

19.  In relation to the urine tests, there is a laboratory note on both exhibit D3 and D4 in the section dealing with the negative finding for cocaine to the following effect:

“Cocaine, a commonly abused drug is excreted into the urine within 20 minutes of administration and may be detectable in the urine up to 4 days after use.”

20.  The first sample (with which exhibit D3 was concerned) was drawn on 18 September 2010 at 9.30 a.m.  The appellant was found in possession of the packet of cocaine in question in the evening of 11 September 2010.  Clearly, the magistrate was justified on the evidence when he said that he did not believe any trace of cocaine could still be found in the appellant’s urine after a week had elapsed.  He was accordingly entitled not to attach any weight to the urine test results.

Conclusion

21.  In my judgment the reasons given by the magistrate for rejecting the evidence of the appellant and his witness cannot be faulted.  Indeed, I agree with them.  Once that explanation fell away, what was left was the finding of the appellant in the rear lane behind D’Aguilar Street in rather curious circumstances with a packet of cocaine in his rear pocket.  Even without recourse to the statutory presumptions under section 47 of the Dangerous Drugs Ordinance (which were not relied upon by the magistrate and, accordingly, I am not concerned with their possible application to the evidence), the inferences of knowledge and possession were irresistible. 

22.  The appeal against conviction is dismissed.