HKSAR v. TRAN QUI ANN-SANDRA

HCMA 955/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 955 OF 2009

(ON APPEAL FROM TWCC 2522 OF 2009)

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J U D G M E N T

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1.  On the night of 15 June last year, the Appellant, a 31 year old woman with a clear record and a good job, returned to Hong Kong on a flight from Thailand.  At the airport here she was subjected to a body search.  A plastic bag in which were 0.06 gms of a powder containing cocaine was found in the right breast pocket of the jacket which she was wearing.  She was charged with possession of those dangerous drugs, was convicted after trial before JT Glass, Esq. in the Magistrate’s Court at Tsuen Wan, and was fined $3,000.  She now appeals against her conviction.

2.  It has never been in dispute that the dangerous drugs were in her pocket.  The issue at trial was whether or not she knew of their presence.  The Magistrate found that she did.  This appeal is about whether he erred in so finding.

3.  A number of points were urged on the Appellant’s behalf.  I turn straight away to the one which arises as follows.  For the purposes of s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, under which the Appellant was charged, she would not be in possession of the dangerous drugs in her pocket unless she knew that they were there.  In finding that she had such knowledge, the Magistrate relied to some extent on a record of an interview of the Appellant by Inspector Leung Chun-man of the Customs and Excise Department.  The Magistrate described the record of interview as “mixed”.  He treated it as partly inculpatory.

4.  Was it inculpatory as to any material fact in issue?  The fact that the dangerous drugs were in the Appellant’s pocket was not in issue.  That she suspected that they were dangerous drugs once they had been found and she had been arrested on suspicion of being in possession of dangerous drugs is immaterial.  The issue was whether she knew that they were in her pocket.

5.  Did she make any admission of such knowledge?  In determining whether any fact in issue has been admitted by an accused person in an out-of-court statement, it is necessary to give the statement a fair reading as a whole and to refrain from taking any part or parts of it out of context.

6.  When the Appellant first said, prior to the interview in question, that she knew that the substance were drugs, she said so after a declaration of arrest referring to drugs.  Later on when she referred during the interview to cocaine, she did so after the dangerous drugs had been found upon testing to be cocaine.  As to why she suspected it was cocaine, she talked about what she had learnt from films.  If she had been in knowing possession all along, it would not be merely a matter of suspicion based on what she saw in films.

7.  In her interview, the Appellant spoke of wearing the jacket when clubbing and becoming drunk.  She spoke of that in relation to how the dangerous drugs might have got into the pocket of that jacket.  That is not consistent with her having been in knowing possession of the dangerous drugs.  It is consistent with how the dangerous drugs might have got into her pocket without her knowledge while she was drunk.

8.  In my view, the record of interview on which the Magistrate had placed some reliance in convicting was not inculpatory on the issue on which the case was fought, namely the issue of whether the Appellant knew that the dangerous drugs were in her pocket.  In placing some reliance on the record of interview in convicting, the Magistrate misapprehended the effect of the record of interview and made a crucial error.

9.  On the circumstantial evidence as a whole, a conviction was possible but not inevitable.  So this conviction cannot be affirmed on the basis the crucial error which the Magistrate made did not matter.

10.  There are other grounds of appeal which have been advanced.  I need not say anything about those other grounds.  By reason of the crucial error which I have referred to, this appeal must succeed.  I allow the appeal, quash the conviction and set aside the fine.