HKSAR v. HO CHUN LOY

HCMA267/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.267 OF 2002

(ON APPEAL FROM WSCC 14806 OF 2001)

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J U D G M E N T

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1. The appellant was convicted in Western Magistracy by a magistrate of one charge of possession of a dangerous drug. He appeals against his conviction.

2. The prosecution case was this. Two police officers were patrolling in the garden area underneath the Ap Lei Chau Bridge. They saw the appellant sitting on a bench with a three-year-old boy who was his son. The witness, who was one of the police officers (PW1), saw the appellant acting suspiciously and therefore made a search on him. He found in his pocket a capped syringe containing a small amount of liquid. Upon subsequent examination by the Government Chemist, it was found that the syringe contained a small amount of dangerous drugs. According to this police officer, the appellant was arrested and he asked to be given a chance. He said he needed the drugs as a pain-killer for his injured hand.

3. The appellant gave evidence in the witness box. He said he was at that time playing in the park with his son and in fact it was the policeman who was holding the syringe in his hand, and therefore it was a frame-up by the policeman. That was his evidence and, also, he added that he in fact had never seen the police officer who gave evidence and he did not know where the syringe came from. He made no admission.

4. After considering the evidence and due evaluation given to the evidence, the magistrate accepted the evidence of the police officer. He was also satisfied that the verbal admission was made and was admissible in evidence. Therefore, he came to the conclusion that the appellant was guilty of the offence charged.

5. In this appeal, the appellant wrote a letter to the court asking for the exhibit to be examined for his fingerprints or DNA, arguing that if in fact the article exhibited belonged to him there should be his fingerprints or DNA on it.

6. The appellant's argument or request was not made at trial before the magistrate. Even if it was made, it would probably not be granted because the case depended on the credibility of the witnesses. Articles found on accused person might or might not bear his fingerprints or DNA, so the issue or non-issue is not a matter here or there.

7. I have considered the records and the evidence and I am satisfied that the conviction is neither unsafe nor unsatisfactory. The conviction is fully supported by the evidence. The appeal against conviction is dismissed.