R. v. SIN HUNG FUK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1211 OF 1996

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1. The appellant was convicted of trafficking in dangerous drugs. He was sentenced to 27 months imprisonment.

2. The case against him was that the police officers armed with a search warrant kept watch outside the premises at Room 103, Block 3, Sun Fat Estate, Tuen Mun. They intercepted the appellant as he went to Room 103 and on his person the drugs in the charge against him were found. This was a quantity of a mixture of 30.47 grammes in weight containing 4.30 grammes of heroin hydrochloride. These were packed in four plastic bags each containing 20 straws and the four bags were put in a large plastic bag which was stuck in the appellant's waist band. The police officers also found a key to the padlock attached to the chain securing the iron grill of the premises. Police officers said that he tried to open the grill with the key. The premises were searched but nothing was found. The Crown case was these drugs were found on the appellant's person and not in the premises.

3. The appellant's case was that he was in the street and one of the police officers, PW1, stopped him and handcuffed him. He was taken to Room 103 in which the drugs were already laid out on a table. PW1 told the appellant that the drugs belonged to the appellant. The appellant called a witness to show that the appellant had no connection with Room 103 which was the premises of that witness.

4. The first two grounds of appeal were that the magistrate dealt with the case on the basis that he selected one version to the detriment of the other and the magistrate failed to show on what basis he accepted the prosecution evidence. The magistrate was wrong in accepting the evidence of the prosecution witnesses without query after he rejected the evidence of the appellant and his witness so that he magistrate was shifting the burden of proof.

5. The magistrate in his findings said :

"The first issue I had to decide was whether the appellant was in possession of the heroin. As I have said there was a considerable dispute of fact. If the appellant's case was right it would mean that the police officers who gave evidence were lying in the most dreadful possible way."

After he considered the possibility of the officers lying to frame the appellant up, he said :

"I am bound to say that when they gave evidence both struck me as honest and decent men. There were no significant discrepancies in their testimony although, as the evidence came to me, there were occasional infelicities of expression."

On the appellant's case, he said :

"On the other hand the appellant was supported by a witness. But there were significant discrepancies between the evidence of the 2 men that went far beyond mere details. They disagreed as to where and how they met. More significantly the two defence witnesses gave very different accounts of what happened after the police officer approached the defendant ..."

6. Reading the statement of findings as a whole the magistrate had reminded himself of the burden of proof and he was evaluating all the evidence before him and he had stated the basis on which he found which witnesses were credible. He was not preferring one side to the other and neither did he shift the burden of proof.

7. The third ground of appeal was that the magistrate failed to consider the evidence of the key, the warrant and the access to the premises which evidence was material to the credibility of the prosecution witnesses.

8. The magistrate on the key and access to the premises said :

"The defence placed a certain emphasis on the fact that they had not kept the key with which they say the appellant was unlocking the flat. As they had found nothing in the flat there was no point, as I saw it, in their keeping the key or the padlock as exhibits. Nothing, to my mind, turned on that criticism."

9. It is therefore clear that the magistrate had considered the issues of the key and access to the premises and concluded they were not relevant since the issue was whether the drugs were in the appellant's possession. It is implicit from his findings that the absence of the exhibits and the evidence of access had not affected his belief that the prosecution witnesses were truthful.

10. The final ground was that there was insufficient evidence for the magistrate to draw the inference that the drugs were for the appellant supplying to others.

11. The magistrate after considering the quantity of drugs both in terms of weight and number of straws, and the appellant's denial of involvement in the drugs, concluded :

"I found that the only possible inference that I could draw from this quantity of drugs separated into as many as 80 straws packed in lots of 20 straws was that the appellant had them for supply to others. On the evidence any other inference would have been entirely fanciful."

12. The magistrate could not be faulted for drawing such an inference of guilt from the evidence he accepted. The appeal should be dismissed.