THE QUEEN v. CHAN KWOK-LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.441 OF 1995

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DECISION

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1. The appellant was found guilty of possession of a certain quantity of cocaine and other tablets, contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He now appeals against conviction.

2. The evidence against him was as follows.

3. In the early hours of the morning on 27th November 1994, a police team went to the club where the appellant was a waiter in order to carry out a licence check. Upon interception by the police, the appellant was found to be holding the packets containing the dangerous drugs in his right hand. He told the police that he did not know what the packets contain. The officer said that on being questioned, the appellant at first said that the packets belonged to another person in the bar and he pointed to that direction, but later he said he picked them up from the ground.

4. The appellant gave evidence and said that he was a waiter in the club and had to do the cleaning up of tables. While he was doing so, he picked up the packets. When he was asked, he simply pointed the police in the direction of a guest called Mr Chan. He said he did not tell the police it was Chan who gave the packets to him. It was accepted that the appellant did not take drugs and had not been to the Drugs Addiction Treatment Centre.

5. It is not disputed that the appellant was in physical possession of the packets containing the drugs. The only issue before the learned magistrate was whether he had knowledge of what they were. The learned magistrate reminded himself of the fact that the appellant was not a drug addict. However, he said that he disbelieved the appellant's evidence. He said in his Statement of Findings :

6. With respect, I am unable to agree with the conclusion of the learned magistrate. The inconsistency between the appellant's first response and his explanation when he was further questioned which he confirmed in evidence may be due to various reasons. A desire to conceal the truth is one of them. It is not the only reasonable inference that can be drawn from an inconsistency. It is true that a desire to conceal the truth may be consistent with knowledge of the contents of the packets. However, even if there is such a desire, such state of mind, in my view, it is equally consistent with the appellant, having found the packets on the ground which did not belong to him, was anxious not to let people know that he intended to take them himself. One has to bear in mind that the appellant was indeed a waiter of the club, he had a duty to clean up the tables and there was no evidence that he did not clean up the tables at an early stage on that morning. It is also worthy to note that the guest Mr Chan was not called to give evidence.

7. In the circumstances of this case, I am unable to say that the only reasonable inference which the court could draw from the prosecution evidence, even disbelieving the appellant's evidence, is that he knew the contents of the packets. There is a lurking doubt in my mind as to whether the conviction was safe and satisfactory. I would therefore allow the appeal, quash the conviction and set aside the sentence.