THE QUEEN v. SO TIM SHING

Mag. App. 337/87

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrates Court to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. Three witnesses gave evidence for the prosecution. The first witness was rot inspector who said that on the 8th September 1986, the date of the alleged offence, he was on duty at around 5 p.m., making observations in the area of the Hoover Shopping Centre in Causeway Bay. He said that he was on surveillance duty and that his target was someone other than this Appellant. However, in the course of his observations he saw the Appellant walk along the street. The Appellant met another man and some sort of exchange transaction took place between the two. The inspector described a handing over by the Appellant of a small white object to the other man and a handing by the other man of something to the Appellant which the Appellant then put into his pocket. The two then parted company. The transaction aroused the inspector's suspicions and as a result he sent a message on his beat radio to another member of his team posted on duty in the vicinity. That message was received by another of the witnesses, who eventually saw the Appellant under a nearby flyover and he noticed that he matched the description which had been relayed by the inspector. As a result, he and the third prosecution witness who was called to give evidence, eventually intercepted the Appellant, conducted a body search on him in the street, but found nothing by the way of drugs.

2. The Appellant was taken by the two colleagues of the inspector to a toilet in Victoria Park in order to conduct a further search. During the search of the Appellant in the toilet the officers found a packet of dangerous drugs in his underpants. The Appellant was arrested and taken to a police station. The packet found on him contained heroin.

3. The Appellant gave evidence and denied that he was involved in any transaction such as the inspector described, denied that a packet of drugs was found in his underpants at the toilet, and asserted that no drugs at all were found on him.

4. The learned magistrate, therefore, was faced with a direct conflict between the evidence of the prosecution witnesses on the one hand and that of the Appellant on the other. She accepted the evidence of the police officers and rejected the Appellant's denial. As a result, she convicted him on the charge.

5. On his appeal against conviction, the Appellant complaints that the learned magistrate, in coming to her conclusion to accept the prosecution evidence and reject his, disclosed that she was improperly influenced by the evidence of what the inspector said he saw happening in the street before the Appellant was accosted.

6. In her statement of findings she said this :

“he (that is the Appellant) denied possession altogether and alleged that the two officers had planted the heroin on him. Although that might have been possible, I did not accept that it was what had occurred. In this case, the evidence of the inspector was such as suggested that the Appellant was hanging around the area for the purpose of drug transactions. The observation of the inspector that the Appellant had handed over something small and white in exchange for something else suggested that the finding of a small white packet of heroin inside the Appellant's underpants was not such a surprising event that it indicated that the police must have planted it on the Appellant.”

Those observations by the learned magistrate in her statement of findings are rather troubling in that they are open to the interpretation, as Ms. Toh has suggested in her submissions, that the learned magistrate had come to the conclusion that what the inspector saw was a sinister transaction and that having formed that view of the evidence, her mind was coloured at the time when the Appellant gave evidence with the result that she was unable to assess his credibility in an impartial way.

7. I must say that that was not the impression I had on a first reading of the learned magistrate's observations. It then seemed to me that the learned magistrate was saying that the finding of the white packet in the Appellant's underpants was not surprising following so closely upon the furtive transaction witnessed by the inspector. If the transaction witnessed by the inspector had been "white packet going to and not from" the Appellant her reasoning would have been unassailable particularly if, as appears to have been the case, the packet of heroin was the only small white article found on him. Acceptance of the inspector's evidence in those circumstances would have formed a reasonable basis for concluding that the furtive transaction related to heroin and that the finding of the heroin on his person "was not such a surprising event". In this case, however, the white article passed from the Appellant. It may or may not have been a packet of heroin. If it was not, then any packet found on the Appellant was unrelated to the street transaction and the evidence of that transaction was of no assistance in determining whether the Appellant's allegation of a "plant" was untrue. It is therefore difficult to exclude the possibility, arising from what the learned magistrate has said, that her reasoning was that the street transaction related to drugs because a packet of drugs was found in his underpants and that that drug transaction indicated that the packet was not "planted" but actually found on him. It does appear from the record then that the learned magistrate made a finding prejudicial to the Appellant's credibility through a flaw in her reasoning. The conviction in those circumstances is unsatisfactory.

8. I, accordingly, allow the appeal and quash the conviction and sentence.