HKSAR v. JAGROOP, SINGH

HCMA 45/2024

[2024] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 45 OF 2024

(ON APPEAL FROM ESCC 2406 OF 2023)

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J U D G M E N T

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1.  The Appellant was convicted after trial of one charge of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The Appellant was sentenced to 3 months’ imprisonment. The Appellant appeals against conviction, but did not file any grounds of appeal.

Prosecution Case

2.  As briefly summarised by the Respondent, at about 1713 hours on 26 August 2023, Police Officer PC60472 (PW1) was conducting patrol at Chiu Kwong Street in uniform with three teammates. PW1 saw the Appellant at the street looking around in an odd manner. The Appellant was about 1.7m tall, wearing a short-sleeved black top, blue jeans and a cap.

3.  The Appellant went into Wellgan Court at No. 2 Chiu Kwong Street. Finding the Appellant suspicious, PW1 and his teammates followed him and entered the building. The distance between PW1 and the Appellant was about 2m to 3m.

4.  PW1 had once lost sight of the Appellant before entering the building. However, PW1 confirmed that the Appellant in Chiu Kwong Street was the same man he saw in the building. There was no other entrance to the building, and there was no other person entering the building after the man and before PW1 entered the building.

5.  When PW1 entered the building, he had eye contact with the Appellant. PW1 said “police, don’t move.” The Appellant went up the stairs, and PW1 gave chase. When the Appellant went up to the staircase between the 1^st and 2^nd floor, the Appellant used his right hand to place some objects by the window edge.

6.  The distance between PW1 and the Appellant was about 1m. When PW1 approached the staircase between the 1^st and 2^nd floor, PW1 saw that there were two bags at the window edge. The two bags contained something green.

7.  After telling his teammates to guard the two bags, PW1 continued to chase the Appellant upstairs until the 2^nd and 3^rd floor. PW1 successfully intercepted the Appellant.

8.  Upon interception, the Appellant appeared very nervous. He started to utter things in a language that PW1 did not understand. PW1 asked the Appellant, “English okay?” He nodded. PW1 asked him whether “two bags of stuff yours?”. The Appellant nodded and admitted to PW1 that the two bags of stuff were for his own consumption. The Appellant’s exact wording was “I broke those two pack for self consume.”

9.  PW1 explained that by the word “broke”, he meant the past tense of “buy”, which he did not know how to pronounce. PW1 confirmed that it should be “bought”. The two seized bags, P2 and P3, respectively contained 13.9 grammes of cannabis in herbal form and 4.4 grammes of cannabis in herbal form. The total market value of two bags of herbal cannabis was about $3,400 odd.

Verdict

10.  The Magistrate found PW1’s material evidence was clear and unshaken under cross-examination. There was no difficulty for the Appellant to use his right hand to place something on the window edge as he ran up the stairs. PW1 could see his act without difficulty.

11.  The Magistrate was satisfied that the Prosecution had proved the Appellant’s conduct and the facts of the case beyond reasonable doubt.

12.  The Magistrate also considered that the Appellant’s explanation of self-consumption was a mixed statement, to which the Magistrate attached limited weight.

13.  The Magistrate had taken into account the dangerous drug’s quantity, value, the Appellant’s immigration status in Hong Kong, which did not allow him to take up employment. Having considered all the circumstances of the case, the Magistrate held the only reasonable inference was that the Appellant possessed the drugs for trafficking purposes.

Grounds of Appeal

14.  The Appellant, acting in person, filed appeal but did not submit any grounds.

Respondent’s Reply

15.  Respondent said that this is a straightforward case. The case hinges on the credibility and reliability of PW1. After careful consideration and assessment, and the Magistrate enjoyed the advantage of seeing PW1 and receiving his evidence firsthand.

16.  The Appellant told PW1 that he bought the two bags for self-consumption. This is a mixed statement to the charge of trafficking in a dangerous drug, but this was a bare assertion without being tested by cross-examination. The Magistrate held and said that he attached limited weight to this explanation.

17.  So having considered all the circumstances, including the drug’s quantity, the number of bags, the value, and the Appellant’s immigration status, which prohibited him from taking employment. Under all the circumstances, the Magistrate held that the only reasonable inference was that the Appellant trafficked in the drugs.

18.  The Respondent said that the Magistrate’s decision is not wrong and should be upheld and that the appeal should be dismissed.

Considerations

19.  In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the Magistrate to convict, and the judge must be satisfied that the Appellant’s guilt have been proven beyond reasonable doubt on all the evidence.

20.  This is a straight-forward case where the material evidence hinges upon the credibility and reliability of the arresting officer. Upon trial, the Magistrate had duly considered the evidence. While represented by counsel at trial, PW1 was criticised that his evidence was evolving and changing and had some differences from his witness statement, of which the Magistrate had dealt with and considered the lack of every detailed record did not affect his observation evidence.

21.  And on the exact wording of the Appellant’s response at the scene, the Magistrate observed that PW1’s English standard was not good, but he was able to understand the material part of the Appellant’s response.

22.  Clearly, the Magistrate had the advantage of handling PW1’s evidence firsthand. After careful assessment and consideration, the Magistrate accepted PW1’s evidence, and there was no basis for this court to reverse his finding.

23.  So after rehearing on all the evidence before this court, this court is also satisfied the Appellant’s guilt had been proven beyond reasonable doubt. Therefore, the conviction do stand. The appeal is dismissed accordingly. The Appellant is to serve his sentence immediately.