HKSAR v.MICHELLE CHENG

HCMA 507/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 507 OF 2001

(ON APPEAL FROM ESCC 3971/2000)

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of one count of Possession of Dangerous Drugs, the dangerous drugs comprising one half tablet of Ecstasy and some fragments of Ecstasy tablets. She was fined $2,000.00. She appealed against conviction and I reserved my decision, which I now give.

Facts

2. The facts of the arrest were that the Appellant was stopped by a policewoman (PW1) who was conducting anti-drugs duty inside a female toilet of a night club which was opening for the first time. She searched Appellant's handbag and found the Ecstasy tablets in a plastic bag. When she asked what it was the Appellant allegedly said it was 'Fing Tau Yuen', slang for Ecstasy.

3. The policewoman declared the arrest of Appellant and cautioned her. Under caution, the Appellant said that she did not know that packet was in her handbag and it was not hers.

4. At the trial, no issue was taken as to the possession of the drugs. What was hotly disputed was whether or not the Appellant had admitted that the tablets were 'Fing Tau Yuen'.

5. A post-recorded statement was taken by the policewoman at the Police Station and the Appellant was asked to sign and confirm its content and she did so. No mention was made in the post-recorded statement of the admission as to knowledge of what the tablets were.

Grounds of Appeal

6. Various grounds of appeal were advanced, but the only one of substance is that the Magistrate erred in failing to consider the evidence of PW1 in its totality and failed to resolve inconsistencies and contradictions within the evidence itself and with other evidence, such as PW1's witness statement and notebook and the defence witnesses' evidence, in particular, that of Station Sergeant Yau who had prepared the Brief Facts. He is referred to as DW1 in the Statement of Findings but is DW2 on the transcript [B82-84]. I shall refer to him as DW1.

7. An associated ground was that the Magistrate erred in accepting PW1's explanation for omitting the Appellant's admission of knowledge from the police record, as such an explanation was inherently improbable in all the circumstances and irreconcilable with the sequence of events recorded in the post-recording.

8. The Magistrate in his Statement of Findings acknowledged the importance of PW1 as the sole witness; he noted that as her evidence was without corroboration he had to be cautious about it. He recognised that by the omission of the alleged admission from the post-recording the Appellant had been deprived of any opportunity to confirm, or challenge, whether or not she mentioned "Fing Tau Yuen" in answer to PW1's enquiry. He reviewed PW1's evidence and concluded that she was an honest and truthful witness. He was satisfied that she told him the truth without any mistake, misunderstanding or exaggeration. He considered PW1 was unshaken during intensive cross-examination. He found her explanation of why the omission occurred reasonable and accepted it, saying the omission did not affect her general credibility, or raise any doubt in his mind. He attached full weight to PW1's evidence.

9. It is correct that at the hearing PW1 was intensively cross-examined. However, it is inaccurate to say that she was not shaken during the intensive cross-examination. On several occasions PW1 was made aware of and could not explain discrepancies in her evidence, both as to the chronological sequence and as to her memory of events, and, certainly, her explanation as to why she did not record the alleged admission was not very convincing. It was PW1's belief that her preliminary or initial investigative enquiries did not need to be recorded in her notebook. This did not explain why an admission vital for proving knowledge was never recorded or put to the Appellant at any time thereafter.

10. PW1 was a policewoman of some 6 years experience at the time of the incident and was aware of procedures in, and had had previous experience of, drug arrests. She agreed that at the Police Station she intended to make a record of everything that transpired at the time the drugs were found. From her training she knew that she should give the Appellant an opportunity to know what was recorded as having been said and done at the time of the arrest and the circumstances surrounding it.

11. PW1 said in cross-examination that she had asked the Appellant whether she said such things i.e. denied the tablets were hers, and that she agreed. During the post-recording everything the Appellant said was written down; the Appellant had read through it and signed it. PW1 agreed that nowhere in that account did the words: "These are 'fing tau yuen'" appear. She said that that admission was part of the investigation process and as such was mentioned only in her witness statement.

12. Some of PW1's answers reveal that she considered it was for the Appellant herself to have added the comment that she did not know the nature of the drugs, when shown the post-recorded statement. [B52 J-K] PW1 also commented that it was defence counsel who considered this was important and should have been recorded in the post-recorded cautioned statement, the implication being that she did not. [B52 M-O] PW1 appeared unwilling, or unable, to agree that the alleged admission was so important a component of the evidence that it should have been made part of the post-recording, either in a preamble to the post-record, or in a written document produced to Appellant.

13. The other important omission which is troubling was that the alleged admission was not recorded in the Brief Facts prepared for the case. The defence called Station Sergeant Yau, who prepared the Brief Facts, as a defence witness (DW1). He confirmed that he would regard such an admission as important and, if it had been recorded in PW1's witness statement and he had seen it, he would have included it in the Brief Facts. There was no explanation as to why he might have omitted such admission. The Magistrate took the view that DW1 was an honest witness and the omission must have been "a mistake", without dwelling on the incongruity of an experienced officer omitting so cogent a piece of evidence. In light of the "mistake" the Magistrate dealt with that evidence simply by attaching no weight to it.

14. It is difficult to accept that an experienced Station Sergeant preparing the Brief Facts for a drug case would have omitted a vital admission as to knowledge of what the drugs were, if such existed and he had seen it recorded. That such an admission was not mentioned in the Brief Facts and apparently not seen by the officer, raised at least the possibility that another witness statement had been prepared by PW1, or that her statement had been amended by the addition of this material at a later time. It raised questions about PW1's credibility.

15. While I accept that the Magistrate had the advantage of seeing the witnesses and hearing the evidence, I am of the view that his, perhaps too ready, acceptance of the reasons given for the omission both in the post-recorded entry and in the Brief Facts meant that he did not examine and reconcile the major evidential conflict sufficiently.

16. The evidence raised at least a possibility that the drugs had been introduced into the Appellant's handbag by some person, or persons, unknown to her, or that the drugs had been secreted by somebody else, perhaps by mistake, on their realising what a heavy police presence there was at the opening of the night club. There was evidence from Snr Inspector Fung (DW3 B86-92) that at the conclusion of the evening the police found drugs, which had obviously been abandoned, on the dance floor, and other parts of the night club.

17. The post-recorded entry indicated that after caution the Appellant had denied the drugs were hers and denied knowing why they were in her handbag. It is difficult to reconcile that denial with an alleged earlier admission that she knew the tablets were Ecstasy. The Magistrate did not examine this matter in any depth, other than to set out the details of PW1's evidence and say he believed her.

18. Although the facts of the incident throw heavy suspicion on the Appellant, I consider that the Magistrate was hasty in adopting a position of certainty in relation to PW1's evidence, particularly in the light of the omission of the alleged admission from the Brief Facts, as well as the post-recorded entry in the notebook. The Magistrate had dealt with DW2's evidence by saying that he was satisfied that he had told him the truth "according to the best he could do". However, as DW2 "made a mistake", i.e. in not introducing the admission into the Brief Facts, he attached no weight to this testimony. No further consideration was given to what DW1's omission to record, or failure to remember, meant in the context of PW1's evidence and of her credibility. At no stage does it appear in the Statement of Findings that the Magistrate considered seriously the possibility that the alleged admission may not have been in the document at all or that the alleged admission could have been fabricated.

19. For all these reasons, I cannot be satisfied the conviction is safe and accordingly I allow the appeal against conviction and order that the amount of the fine be returned to the Appellant.