HKSAR v. CHENG HIU MING

HCMA 834/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 834 OF 2000

(ON APPEAL FROM SOUTH KOWLOON MAGISTRACY
NO. SKCC 1101 OF 2000)

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J U D G M E N T

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1. On 22 June 2000 the appellant was convicted, after trial in Eastern Magistracy, of an offence of possessing a part I poison. He appealed against that conviction and, on 20 December, I allowed that appeal saying that I would give reasons in writing at a later date. These are my reasons.

2. The appellant, a student aged 16 with a clear record, was stopped by the police in the early afternoon of 6 March 2000. He was searched and found to be in possession of some 20 tablets which were subsequently found to contain zoplicone a part I poison. The tablets, which I have seen and which are unremarkable, were contained in the usual tablet packet as supplied by pharmacies. Upon his arrest the appellant told the police that he had bought the tablets at the specific request of a friend who told him that he was suffering from a headache. He told the police the name of that friend and his address and contact telephone number. The appellant also told the police at which pharmacy he had bought the tablets - and from whom. He said, in effect, that he had no idea that the tablets contained a part I poison.

3. Shortly after the arrest of the appellant - and as a direct result of what he told the police - the man (who he said had asked him to buy the tablets for him) was also arrested. Upon his arrest that man told the police that he had indeed asked the appellant to buy the tablets for him - and had told him that they were to relieve a headache.

4. At his trial the appellant and the man to whom I have referred both gave evidence confirming what they had told the police upon their respective arrests. It is accepted that there could have been no contact between the two of them between the time of the appellant's arrest and his trial.

5. Before coming to the learned Magistrates statement of findings I might just say - because it seems to me to be of not inconsiderable importance - that at no time did the police (in the course of their investigation) see fit to visit the pharmacy identified by the appellant to ascertain whether tablets of the kind which the appellant said that he had bought there were available for sale; or to ascertain if the man who the appellant had described as being the vendor of the tablets was a member of staff of that pharmacy, and to make enquiries of him. That, so it seems to me, is quite astonishing and not a little disturbing. In addition, apparently no enquiry was made, and certainly no evidence was given at the appellant's trial, of the nature of the tablets found to be in his possession i.e. what their true purpose might be.

6. In his statement of findings the learned Magistrate rejected the evidence given by the appellant and by his witness - which of course he was quite entitled to do, provided that he sought in doing so to evaluate that evidence in the context of other salient circumstances [Lam Tin Chung v. R [1970] HKLR 105]

7. The learned Magistrate then proceeded to state that he accepted the evidence of the arresting police officer (which evidence was never, in reality, in dispute); that he had considered what the appellant had told the police in interview (which again was never in dispute), before proceeding to say this:-

"the evidence here is clear, cogent and compelling ... I have no doubt at all that not only did (the appellant) have (the tablets) in his possession, he knew what it was and clearly had no prescription for it. There can be no other reasonable inference drawn from the evidence other than that of guilt."

The grounds of appeal

8. For the appellant Mr Hung of counsel has argued 5 grounds of appeal before me as follows:-

1. There was no/no sufficient evidence upon which the learned Magistrate could infer the necessary intention/knowledge on the part of the appellant.

2. In rejecting the evidence of the appellant and his witness the learned Magistrate failed to evaluate that evidence in the context of other salient circumstances.

3. The learned Magistrate erred in disbelieving the appellant by misdirecting himself in saying that "a lot of what (the appellant) said in cross-examination was not put to PW 1 (the arresting officer); and

4. The learned Magistrate failed to identify, or set out, what were the proven facts from which he had drawn the inescapable inference that the appellant had the necessary knowledge that the tablets in question were a part I poison.

Conclusion

9. In my judgment each and every one of those grounds of appeal has substance. As to the 1st and 4th grounds I cannot begin to imagine what the evidence was which the learned Magistrate found proved and from which he felt able to draw the inference of knowledge and thus guilt. Certainly he made no attempt in his statement of findings to identify those proven facts.

10. As to the 2nd ground of appeal it speaks for itself, the salient circumstances being as follows:-

1. the appellant (and his witness on his behalf) gave the same exculpatory account in evidence as they had given to the police.

2. there had been no opportunity for contact between the appellant and his witness following the arrest of the appellant and his trial; and

3. the appellant, upon his arrest, had given to the police full details of the events leading to his possessing the tablets, including the name, address and contact telephone number of the man who had (he said) asked him to purchase the tablets.

11. As regards the 3rd ground of appeal I simply do not understand what the learned Magistrate was referring to when he gave as one reason for disbelieving the appellant's evidence that "a lot of what he said in cross-examination was not put to (the arresting officer)". The fact of the matter is that the arresting officer's evidence was not, in reality, disputed.

12. It is for all of these reasons that I allowed this appeal against conviction which I regard as being unsafe, and set it aside.