HKSAR v. CAMARA IDRISSA

HCMA 542/2018

[2019] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 542 OF 2018

(ON APPEAL FROM ESCC NO 1134 OF 2018)

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J U D G M E N T

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1.  The appellant (D2 at trial) together with a co-defendant (D1 at trial) faced a joint charge of trafficking in a dangerous drug in respect of one packet of powder, containing 0.16 grammes of cocaine at Lan Kwai Fong.  D1 pleaded guilty before trial.  The appellant pleaded not guilty and was convicted after trial by the trial Magistrate (“the Magistrate”). The appellant was sentenced to 18 months’ imprisonment.

2.  The appellant filed a Notice of Appeal against his conviction only.  The appellant was represented by a duty lawyer at trial.  He is unrepresented in the appeal proceedings.

The Prosecution Case

3.  In gist, at the material time in Lan Kwai Fong, Central, a police decoy officer, PW1, was approached by D1 who offered to sell cocaine for HK$1,000.  PW1 agreed.  D1 left briefly.  Another police officer, PW2, saw the appellant went to have a conversation with the appellant.  Thereafter, D1 went back to the decoy officer and collected marked money from him.  The marked money consisted of two $500 bank notes.  They then proceeded to a stair nearby and D1 pointed to the officer the subject packet of dangerous drug which was on the ground.  The officer picked up the packet.  D1 then returned to the appellant and passed him the marked money. The appellant was then arrested with the marked money found in his possession.

The Defence Case

4.  The appellant gave evidence that D1, a stranger to him, approached him to change his money into smaller notes.  The appellant agreed.  D1 then gave him two $500 bank notes.  In return, the appellant gave D1 six $100 bank notes and twenty $20 bank notes.  The appellant denied taking part in any drug transaction.

Reasons for Conviction

5.  The Magistrate properly directed himself as to the burden and standard of proof.  He noted that the appellant had a clear record and gave himself the required direction favourable to the appellant.  The Magistrate accepted the evidence of the prosecution witnesses as to the events of the transaction that took place.

6.  Having evaluated the evidence of the appellant, the Magistrate found the appellant’s evidence unreasonable and incredible.  The Magistrate pointed out that not only the appellant could not give a clear account of how much changed notes he gave to D1, his evidence as to how much money was on him was also inconsistent with the money in fact found on him upon search by police officers.

7.  Having rejected the appellant’s evidence, the Magistrate reminded himself properly that nevertheless it was for the prosecution to prove the case against the appellant.  The Magistrate noted that the case against the appellant was one of inference.  He stated in his Statement of Findings:

“20. It is important to look at the chronology of events. D1 talked to the appellant after an agreement was made between himself and PW1. He did not directly go to the drugs or ask for money. Instead, he had to talk to the appellant before he returned to PW1 and finished the deal. If he was selling the drug alone, it would not be necessary for D1 to talk to the appellant at that very moment. He could have finished the deal himself. Clearly, the appellant was involved in the transaction.

21. The prosecution’s position is strengthened by the fact that D1 handed the proceeds of sale immediately to the appellant after the transaction.  Having rejected the appellant’s evidence, I see no other plausible reason why D1 would hand in the money to the appellant.”

8.  The Magistrate found, as an irresistible inference that the appellant must be selling the drugs, together with D1.  He therefore convicted the appellant as charged.

Grounds of Appeal

9.  In his letter to court dated 30 November 2018, the appellant repeated his version of the case saying that he only changed money for D1.  He stated that he was innocent.  He emphasised that his fingerprint could not be found on the packet of drugs and that he could not be seen in the photograph produced to the court.

10.  In today’s hearing, the appellant reiterates that he is innocent.  He repeats his version of the case that he only changed money for D1, which could be captured by the CCTV of the 7-Eleven convenience store.

Consideration

11.  A magistracy appeal is heard by way of rehearing of the evidence before the Magistrate.  It is to be noted that insofar as findings of credibility of witness is concerned, the appellate court does not have the advantage of the Magistrate of seeing and hearing the witness.  The Magistrate is therefore in a better position to assess the credibility of a witness.  An appellate court will depart from a Magistrate’s determination of a witness’ credibility, only if it is plainly wrong, such that no reasonable judge could have reached such a finding.  There was no dispute that there was indeed a drug transaction.  The Magistrate indeed carefully considered and explained the reasons for his acceptance of the prosecution evidence.  I do not see any reasonable basis to interfere with such finding.

12.  Insofar as the appellant’s case is concerned, the Magistrate also gave proper and detailed analysis before he rejected the case of the appellant.

13.  I agree with the Magistrate’s analysis. It is impossible that D1, a person whom the appellant did not know, would suddenly approach the appellant, simply to change money.  There is no evidence why D1 would know the appellant had sufficient money to change his two $500 bank notes. The appellant also failed to explain the money found on him.  I find the appellant’s evidence rightly rejected by the Magistrate. 

14.  Having rejected the appellant’s evidence, the question left is, whether the inference drawn by the Magistrate was indeed irresistible.  It  was not, and could not be disputed that there was indeed a drug transaction.  As the Magistrate properly analysed, after D1 agreed to sell the drug to the decoy officer, D1 did not directly ask for money or take the officer to get the drug.  Instead, he talked to the appellant first.  It was only after their conversation that D1 returned to the officer, taking him to the stair to pick up a packet of drugs.  If D1 was the only person selling the drug there, it would be entirely unnecessary for him to speak to the appellant first and hand over the marked money to the appellant immediately after the transaction.

15.  In my view, the analysis and the conclusion drawn as the only reasonable inference by the Magistrate cannot be faulted.  The absence of fingerprint evidence and the appellant not being shown in the photographs which were only intended to show the location of the scene, can cast no doubt on the prosecution case.  By way of rehearing of the case, I would have come to the same conclusion as the Magistrate did - the appellant was selling dangerous drug, together with D1.

16.  The appellant also complained that his sentence is heavier than the co‑defendant.  This is not a matter I should deal with in this appeal which is against the conviction only.

The Result

17.  For the reasons given, the appeal against conviction is dismissed.