THE QUEEN v. LEE MEI CHU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 592 OF 1988

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J U D G M E N T

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1. This is a dangerous drugs rebuttal case. The prosecution case was put before the court by way of admitted facts under Section 65(c) of the Criminal Procedure Ordinance.

2. Those admitted facts were that at about 6.50 p.m. on the 27th April 1988, the appellant was walking in the company of. a man in Kwun Chung Street near Austin Road. She was then accosted by a party of police officers A woman police constable searched the appellant's handbag and found in it 3 transparent polythene bags containing a total of 22.01 grammes of the mixture of which 1.76 grammes was salts of esters of morphine. Also in the handbag the woman police constable found $10,000.00 in cash made up of banknotes of varying denominations but one was a 1,000 dollar note.

3. Later that night the officers accompanied the appellant to her home on the 8th floor of Block E of Nam Ming House Wan Hon Street, Kwun Tong. There on a shelf on the top of a bed inside the appellant's cubicle they found 120 small polythene bags, a Chinese scale bearing traces of heroin and a Po Chai Pill Phial also with traces of heroin. When the appellant was cautioned she admitted possession and said the drugs were for her own consumption.

4. The appellant was the only witness to give evidence. She said that 'she was aged 21, married and with a child born on the 10th June 1987. She said she was a drug addict having begun to take drugs after the birth of her child on having been told that such drugs would suppress the headaches she had begun to suffer.

5. On the day in question whilst shopping in Yaumatei with her husband, she told him to wait at a shop whilst she went elsewhere to buy 'something'. Having done that, she returned to her husband and they were both walking along the street on their way to their home when they were accosted by the police officers. She said that she used the Po Chai Pill Phial at one time to measure the drugs she purchased but later, on advice, she acquired a Chinese scale, the one found in the premises, to use for that purpose. She measured the purchases in order to see whether the supplier had cheated her in relation to the measure. If she found she had been cheated, she would not purchase from that supplier again.

6. She said at she spent $1,000 a month on drugs, saving the money from her house-keeping allowance so as to keep her husband in ignorance of her habit. During her evidence in chief, this exchange cook place:

"Q. There was $10,000 found on you by the police where did that come from?

A. My mother-in-law gave it to me for decoration with.

Q. What is her name?

A. I am not clear.

Q. (by court). Why are you not clear?

A. I do not know, I forget her name.

Q. (by her solicitor). What decoration work was this?

A. Decoration was to buy things etc?

Q. What was the address where the work was to be done?

A. At the Tai Po Centre

Q. Do you know the address?

A. I think it was Cheung Wong Building."

7. Later again in her evidence in chief she said that her mother in law had given her the money because her mother-in-law saved up "by bits" and did not put the money into the bank.

8. During her cross-examination, when she was being asked about the place where the drugs were found at her home and aging challenged about her statement that her husband was ignorant of her habit the court intervened and following exchange occurred:-

Q. Whose place was the Tai Po premises to be decorated?

A. My husband's.

Q. (by prosecutor). What sort of place was it?

A. Residential This was where we are going to move

Q. (by court) Have you ever been there yourself.

A. Yes, once.

Q. (by court). Were you excited to be moving into a place of your own?

A. Yes.

Q. (by court). Can you not tell us the address.

A. It is in the vicinity of the bus stop.

(Mr. X, a solicitor, now tells the court about some documents in his possesion to the effect that they have something to do with these premises and he is reproved the court for attempting to give evidence about matters that should properly come from the witness)

Q. (by prosecutor) What floor were the premises on?

A. Block E, 8th floor.

Q. How large were the premises?

A. Which one?

Q. The new one.

A. 400 odd feet."

9. The learned Magistrate did not accept her evidence that the drugs were for her own consumption and convicted her of the offence of possesion of dangerous drugs for the purposes of unlawful trafficking contrary tosection 7 of the Dangerous Drugs Ordinance.

10. She now appeals against that conviction and her Counsel, Mr. Laskey, who did not represent her at the trial puts forward 3 grounds of appeal. The first ground is that there was a material irregularity during the hearing, whereby the learned Magistrate was not informed of an agreement which had been reached between the prosecution and the defence and that as a result he erroneously disbelieved the appellant's account of purchasing a property and the money required for such a purchase."

11. In relation to that matter, the hearing of this appeal was adjourned until today from the 1st day of hearing in July of this year to enable affidavit evidence to be filed regarding the agreement which was reached between the prosecution and the defence and to enable the documentary evidence the subject of the agreement to be put before the court. That has not been done and the solicitor who appeared for her in the Magistrates Court has filed an affidavit saying that there was a conversation between him and Counsel who was prosecuting on fiat, about the agreeing of the prosecution evidence. During that discussion, the solicitor for the appellant showed the prosecutor sale and purchase documents relating to a property described as Unit G, 17/F., Block 1, Fortune Plaza, Tai Po, New Territories. The document showed that the purchasers of the property were the husband of the appellant and the appellant's father-in-law and that the agreement was dated the 10th September, 1987.

12. It is Mr. Laskey's contention that if the solicitor had been allowed to pursue the matter before the learned Magistrate, the Magistrate may not have formed an adverse view of the appellant's evidence concerning the reason for her possession of the sum of $10,000.

13. It seems to me, however, firstly, that the Magistrate did not prevent the solictor from putting before the court the fact that there had been an agreement between the solicitor and the prosecutor. The solicitor made no mention of that agreement at all. He simply said that he had documents in his possession. Secondly, if the solicitor had told the learned Magistrate what he has now told this court in his affidavit, and the Magistrate looked at the documents, then he would have been even stronger in his view that the appellant's story about the $10,000 was false.

14. As I have mentioned, the property which her husband was interested in purchasing was Unit G on the 17th floor of building in the New Territories. She said that the premises were on the 8th floor of Block E. The 8th floor of Block E is, of course, part of the address of the premises in Kwun Tong in which she was then living. Mr. Laskey makes the point that immediately after giving that answer she was asked how large were the premises and her reply, "Which one?" indicated that she may then have been confused as to what premises were being spoken of.

15. I think that the record of the evidence which I have quoted shows that the Magistrate was entitled to take the view which he did take and if he had seen the documents which I have seen now, he would have been confirmed in that view. I see no merit in this first ground of appeal.

16. The second ground is that the learned Magistrate erred when he failed adequately to consider the appellant's evidence because of a pre-occupation with the adverse view he formed of the manner of her advocate The record and the Statement of Findings certainly show that the defence solicitor did not impress the learned Magistrate as an advocate but the Magistrate has been at pains to point out that even though there was, what Mr. Laskey has euphemistically described as a "personality clash" between them, it in no way affected his assessment of the appellant as a witness and his evaluation of the credibility of the version she related.

17. The appellant's version on the face of the record was impossible to accept and since the Magistrate found that she was at one stage "a stumbling and sullen witness", and a "downcast and uncomfortable witness" at another, he had sound reason for coming to the conclusion that he could not accept her version. He could therefore do no other than find that she did not rebut the presumption.

18. The third ground of the appeal is the general ground of unsafe and unsatisfactory but as I find no merit in the other two grounds there is no merit in the third. The result is that the appeal must be dismissed.