HKSAR v. HO WAI LAP

HCMA500/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 500 OF 1999

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J U D G M E N T

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1. The Appellant was charged with the offence of trafficking in dangerous drug. His co-defendant was charged with possession of dangerous drug. The Appellant pleaded not guilty to the charge and was convicted by the learned Magistrate sitting in North Kowloon Magistracy after a two days trial. The Appellant was represented by the Duty Lawyer at the trial. Upon conviction, the Magistrate imposed a term of two years. The Appellant now seeks to appeal on the conviction.

2. At the trial, the prosecution called two witnesses, both were police officers. Their case was that at about 7:43 p.m. on the material day, they saw the Appellant standing by a stone bench inside Tung Chau Street Park. The officers found him suspicious so they walked closer and observed the Appellant. Later they saw what turned out to be a drug transaction between the Appellant and the co-defendant, with the Appellant being the seller.

3. The officers stopped the Appellant and the co-defendant. Upon further investigation, the officers declared arrest on the Appellant for trafficking in dangerous drug. Inside the police station, a record of interview was taken from the Appellant by PW1.

4. The defence had objected to the admissibility of the alleged oral admission at the scene and the written record. The Magistrate had conducted an enquiry on the special issue, following the ruling in the case of Thongjai [1997] 3 WLR 667.

5. The Appellant elected to give evidence on the special issue. Having considered the relevant testimonies, the submissions and the issue of credibility, the Magistrate found that both the oral and written statements were given voluntarily. He also found no grounds to exercise his discretion to exclude the oral or written statements.

6. As to the general issue, the Appellant elected not to give evidence and called no witness. The Magistrate had cautiously reminded himself that no adverse inference should be drawn against the Appellant's silence and that it was for the prosecution to prove the Appellant's guilt beyond reasonable doubt.

7. In his Statement of Finding, the Magistrate pointed out that he had carefully considered all the evidence. He stated that the prosecution witnesses were truthful witnesses. He accepted as a fact that the prosecution witnesses had correctly observed the transaction between the Appellant and the co-defendant. He drew the conclusion that the Appellant had sold the drug to the co-defendant.

8. Regarding the points raised by the Appellant today, they are really matters relating to the factual findings the basis of which had been covered by the Magistrate in his brief judgment given after the trial and the Statement of Finding. The Magistrate had obviously borne such matters in mind in reaching his decision.

9. The Magistrate had reminded himself of the onus and standard of proof. He had applied the correct legal principles and there is no error in procedural matters. His findings of facts were made after a proper evaluation of the evidence. I can find no merits in this appeal and I shall dismiss it accordingly.