THE QUEEN v. LEUNG KAI ON

BETWEEN:

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JUDGMENT

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1. LEUNG Kai-on ("D.1") appeals against his conviction for possession of dangerous drugs for the purpose of unlawful trafficking.

2. On 16th July, 1986, at about 6.40 p.m. police officers were observing part of Southern Playground in Johnstone Road. Seeing D.1 acting suspiciously, they entered a garden in one corner of the playground and arrested him.

3. According to the police officers' evidence, D.1 was found to be holding a Marlboro cigarette packet, inside which were 26 packets of dangerous drugs, containing a total of about 13 grammes of heroin mixture.

4. D.1 gave evidence admitting that he was in Southern Playground at the time in question. However, he asserted that he was arrested and searched but that the search revealed nothing. He then saw a police officer pick up a Marlboro cigarette packet from behind a flower pot. He knew nothing about the packet or its contents himself.

5. D.1 called YUEN Wai Leung (D.W.2), to give evidence on his behalf. D.W.2 claimed that he had not had anything whatever to do with D.1 before his arrest and that, as an innocent and independent bystander, he saw the two police officers retrieve the Marlboro packet from behind the flower pot.

6. The magistrate, perfectly reasonably, came to the conclusion that the evidence of D.W.2 raised a doubt in his mind and, accordingly, dismissed the charge against D.1.

7. A few days' later, however, the Crown applied for a review of his decision and sought leave to call further evidence. This application was granted and Inspector IP Chi-keung ("P.W.3") was called by the prosecution.

8. The essence of his evidence was that he had seen D.W.2 standing and talking with D.1 for 10 to 15 minutes before D.1's arrest and that after that arrest he had seen D.W.2 with D.1's younger brother and wife.

9. The magistrate was left in no doubt as to the truthfulness of P.W.3, whom he described as an impressive witness.

10. His acceptance of the evidence of P.W.3, necessarily meant that D.W.2 had not been truthful in his evidence, which should be entirely discounted.

11. The magistrate, therefore, having decided that neither D.W.2 nor D.1 was a truthful witness, was left with the evidence of the prosecution witnesses, whom he believed. Their evidence established the offence. He therefore reviewed his decision and found D.1 guilty.

12. Section 104 of the Magistrates Ordinance deals with the powers available to a magistrate to review his decision, which he may do either on the application of a party or on his own initiative.

13. Under that section a magistrate has power, on a review, to re-open the case, to re-hear it wholly or in part and to take fresh evidence. He was within his powers to take the course that he did.

14. The appeal against conviction is dismissed.