HKSAR v. CHEUNG SIU FEI

HCMA 871/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 871 OF 2002

(ON APPEAL FROM ESCC 1573/2002)

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J U D G M E N T

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1. The appellant was jointly charged with another person, D1 with one charge of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He was also charged with Careless Driving, which arose out of the same incident. He pleaded not guilty to both charges but was convicted after trial before a Magistrate on both charges. In relation to the charge of trafficking in dangerous drugs, he was sentenced to 16 weeks' imprisonment. He only appeals against conviction in respect of the charge of trafficking in dangerous drugs.

2. The case is comparatively simple. The prosecutions case was that in the evening of 12 March 2002, a group of police officers laid an ambush in Tai Ming House at Grieg Road, while another group of officers were waiting in a vehicle at Hong On Street. The appellant was the driver of a vehicle, registration number GN 9810. There were 3 other persons in the car, one of them was D1. He was sitting in the rear passenger seat.

3. At about 2040 hours, the appellant drove the car to Grieg Road. After talking to the other persons for a while outside the car, the appellant drove away. At this point, the police officers at Grieg Road came out and chased after the car on foot. The other group of officers at Hong On Street were notified and they drove to Grieg Road to render assistance. The appellant immediately drove away. He went through 2 sets of red lights. The second set of red lights was controlling a two-way traffic on a single lane because of road works. The appellant had to stop because of oncoming traffic in the single lane. D1 came out of the car. He threw a paper bag on the floor and tried to escape. The officers intercepted the persons inside the car. D1 was also subsequently intercepted. The police found the paper bag containing a block of herbal cannabis weighing 2.03 kilogrammes inside the paper bag. Another 0.07 kilogrammes of herbal cannabis was found in the pouch behind the driver's seat. The officers declared arrest on all the persons inside the car, but only D1 and the appellant were subsequently charged with an offence of trafficking in dangerous drugs. Under caution, the appellant said that the things belong to D1.

4. The articles seized were subsequently examined by the Government Chemist and one of the bags was found to have a fingerprint of the appellant, which is shown in a photograph at p. 39 of the appeal bundle.

5. The appellant gave evidence trying to explain away the presence of the fingerprint on the bag. Suffices it to say, the Magistrate Ms N Ching rejected that evidence. On behalf of the appellant, Mr Ng, made no point on the rejection of the appellant's evidence. Nor did he try to argue that the appellant's evidence would raise any doubt against the evidence given by the police officers. The only ground of appeal, if I understand it properly, is that even looking at the evidence adduced by the prosecution, this is insufficient to support the charge that has been brought against the appellant.

6. I was also referred to cases on the question of lurking doubt. I have considered those cases while I am not in dispute with any of the principles enunciated each case must depend on its own facts.

7. In this connection and context, it is important to look at the Statement of Findings of the Magistrate at p. 31 in paragraph 23, where she states:

"I agreed that if the only evidence were the presence of the drugs inside the bag in the car and the palm print, there may not be sufficient evidence to draw any inference. However, in this case, the appellant immediately fled upon seeing the police officers (albeit plain clothes officers). He drove away immediately and jumped 2 sets of red lights. Having regard to the appellant's behaviour, the palm print and the presence of the drugs inside his car, the only and irresistible inference is that the appellant knew that the drugs were inside his car. He was transporting the drugs for D1 with the car. I found that the prosecution had proved charge 1 beyond all reasonable doubt. The appellant was accordingly convicted."

8. If one looks at each piece of evidence individually, there may not be sufficient evidence as the Magistrate rightly points out in her Statement of Findings. But if one looks at the evidence as a whole, one looks at the prosecution's evidence in the round, one must, in my view, have no doubt that the appellant was doing what he was charged and he knew what he was doing. His behaviour of driving away and jumping 2 sets of traffic light was so unusual that one must conclude that he knew the police were after him and the car and having regard to the drug being found in the car, the inferences to be drawn are inescapable. The evidence is so cogent and compelling that there must have left no doubt that the appellant was guilty of the offence. The appeal against conviction is dismissed.