HKSAR v. HO YUK WAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1209 OF 2007

(ON APPEAL FROM KCCC 6148 OF 2007)

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J U D G M E N T

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1. The appellant was convicted by Mr Mierczak at Kowloon City Magistracy of an offence of possession of dangerous drugs namely 90 tablets containing 1.24 grammes of midazolam and was made the subject of a DATC order.  He appeals that conviction. 

2. The prosecution case was that patrolling police officers noticed the appellant behaving suspiciously in Tung Choi Street, Mongkok.  The appellant was intercepted by a police officer, PW1, but when PW1 revealed his police identity, the appellant ran off.  He was chased and caught and, after a struggle, subdued.  When he was searched by PW1, the drugs were found in a paper box in the appellant’s jeans.  When arrested and cautioned, he said the drugs were for his own consumption. 

3. The defence case at trial was that when the appellant was crossing the street to meet a friend or friends at a café, four to five people came up to him and asked why he was there.  When he ignored them, he was kicked by one of them and someone mentioned something about police.  He was then grabbed and handcuffed; he was hit.  He, by now, realised they were police.  Another policeman, PW1, eventually appeared with a packet of drugs.  The appellant denied they were his.  The police then discussed “planting” the drugs on him and he was taken to the police station.  His case was that the drugs were not his and had never been found on him. 

4. The appellant advances the general grounds of appeal contained in Form 101 to section 114 of the Magistrates Ordinance.  He says before me that the police evidence should not have been accepted by the magistrate and makes other more specific complaints which I will come to shortly. 

5. As to the sufficiency of evidence, the magistrate had before him two entirely different versions of what had happened.  The major issue he had to resolve was one of credibility.  He rejected the appellant’s version of events and accepted PW1’s evidence as being credible.  He said, in regard to the appellant’s evidence :

“

I have heard and carefully considered the evidence of the appellant.  He did not impress me in the witness-box.  I do not believe his version of events and reject it.  I do not accept he had been beaten up for no reason at all and, because no drugs had been found on him, the police had to save face and plant them on him.  He says he was calm and civil to them and yet the police had to resort to handcuffs.”

In regard to the evidence of PW1, the magistrate said this :

“

I found PW1 to be an honest and believable witness and I accept what he says.  I believe he was legitimately concerned at the way the appellant had been acting on the street and had formed a reasonable suspicion, after seven minutes’ observation.  Thereupon, I accept he had approached the appellant and, after revealing his police identity, the appellant had fled.  He was caught and, after a struggle, he was handcuffed.  I have no doubt at all as to what happened and that is as PW1 attests to.  Further, I was satisfied that when the appellant had been arrested and cautioned at the scene, he had replied, ‘I bought them and have taken them back for my own consumption only.  Give me a chance’; that what was said was voluntary and I put full weight on it.”

6. The magistrate’s findings concerning the appellant’s and PW1’s credibility cannot be assailed.  I might add that the appellant attempted to repeat his version of events before me today and, in doing so, departed in small but significant detail from what was plainly his evidence before the magistrate.  One example will suffice.  He told the magistrate he had been intercepted and beaten up by police on his way to a café to meet a friend.  He told me his dealings with the police had happened after he had arrived at the café for the purpose of settling a dispute which process had resulted in police coming to the scene. 

7. The appellant also claimed during his arguments before me that his lawyer had not called to court witnesses who were available to give evidence on his behalf.  He gave no further details concerning those witnesses and what their evidence might or might not have been though I note that at the time of the alleged planting of the drugs, the appellant’s case was that he had been taken away from the eyes of witnesses.  His bald assertion regarding this complaint was not in any way substantiated, nor was his general assertion that his lawyer was “sloppy”.  There was nothing material to suggest his lawyer was incompetent in the terms of Chong Ching Yuen v. HKSAR [2004] 7 HKCFAR 126. 

8. The appellant also pointed to a notebook entry made by PW1 which purported to be a post-recording of the appellant’s admission at the scene of his arrest that the drugs were for his consumption.  The appellant claimed before me that the notebook entry contained deleted characters for the phrase “I am not guilty”.  Having had them translated, I am satisfied that the deleted characters were simply a mis-recording of part of a declaration which was written in that notebook by the appellant himself.  The characters following were a correct continuation of the same part of that declaration.  There was nothing in this complaint.  Oddly, the notebook was not produced at trial, even though it was effectively a signed admission by the appellant that he had said the words attributed to him upon his arrest.  Why the notebook was not produced, even though the appellant challenged that admission at trial during the course of a voir dire, is difficult to understand. 

9. I am told that there may be a practice that the signed post-recorded statements of defendants are not produced in the magistracy even where those statements are challenged.  If that be so and there is such a practice it is difficult to see any justification for it.  A magistrate is entitled to have and should have produced to him, the relevant and admissible evidence possessed by the prosecution.  To expect a magistrate to determine the admissibility of a cautioned statement made by a defendant upon his arrest without the production for that purpose of a signed, post-recorded statement of the defendant, if such is available, is to expect a magistrate to determine the admissibility of the challenged statement with only part of the relevant evidence before him. 

10. But whatever the reason for the non-production of the notebook, the appellant’s case was not prejudiced.  If the notebook had been produced, it would likely have substantially assisted the prosecution.  In any event, I am satisfied its existence was disclosed to defence counsel. 

11. The final complaint of the appellant was that no evidence was called to show his fingerprints were not found upon the box of drugs said to have been found upon him.  Such evidence, if called, would in any event be neutral and its absence did not prejudice his case. 

12. There was no merit in the complaints of the appellant and his appeal is dismissed.