THE QUEEN v. TONG SI MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 731 OF 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to two charges, one of possession of dangerous drugs for the purpose of unlawful trafficking and the other of possession of apparatus fit and intended for injecting a dangerous drug. He pleaded not guilty and at the trial was represented by a solicitor.

2. The prosecution evidence was to the effect that a police officer on the day of the alleged offence was on patrol duty in the Yau Ma Tei area at about 8 p.m. In the rear lane of Reclamation Street near house No. 7, he saw a light shining from the cockloft on the ground floor. He went up to investigate and as he was approaching the cockloft, he saw a person holding a syringe. At almost the same time as he saw that person, the person saw him And that person then dropped the syringe and escaped through a ventilation window. The constable tried to chase him but whilst climbing to the cockloft on a ricketty ladder it collapsed and lie fell and was unable to catch the man he had seen with the syringe. He eventually reached and searched the cockloft where he found the drugs which form the basis for the possession for unlawful trafficking charge and a wallet. On examination of the wallet, he found an identity card bearing the name of the Appellant and a photograph. On seeing the photograph he recognised it was of the man who ran away, and he took possession of it.

3. His evidence was that the cockloft at the time was lit by a 100 watt bulb and was very small in area measuring 7 ft by 6 ft.

4. The Appellant was eventually arrested, but the evidence does not disclose how that arrest was effected. Mr. Leung, who appears for the Appellant today, he did not represent him at the trial, says that his instructions are that the Appellant was arrested when he went to the police station to make a report that his cockloft had been ransacked. In any event after his arrest he made a statement under caution and in that statement he said that he did in fact live at that cockloft, and added several selfserving statements. The learned magistrate convicted him on both charges and he now appeals against the convictions.

5. The only ground relied on by Mr. Leung is that the quality of the identification evidence was so poor that the magistrate should not have convicted him on that evidence.

6. In his statement of findings, the learned magistrate said that it was an identification case and because of that it was one which required him to keep in mind the guideline laid down by Turnbull. He went on to say that the arresting officer in his evidence had said that not only had he seen the Appellant on earlier occasions, but that on picking up the identity card he satisfied himself that the photograph was of the man he had just seen running away. He found the police officer to be an honest and truthful witness, unshaken in his cross-examination and whose evidence revealed no discrepancies. He then went on to say this:

"I reminded myself that a convincing witness could be a mistaken witness And then turned to a consideration of the alibi evidence."

7. The Appellant did not give evidence at the trial but he did call, a witness, a relative who gave evidence that the Appellant had visited her on an occasion but she was unable to specify the date of that visit. The Appellant in his cautioned statement had said that at the time when the police officer visited the premises he was visiting that particular relative.

8. The magistrate was quite sure that the police officer was not mistaken in the identification and that he had in fact seen the Appellant in the cockloft using the syringe and that the identity card, dangerous drugs and apparatus abandoned during the flight were the Appellant's. I think that the learned magistrate was entitled on the evidence to come to the conclusion that he did and notwithstanding the criticisms which Mr. Leung has made regarding the magistrate's evaluation of the evidence and notwithstanding his submission that the identification evidence was of poor quality I think that the decision was properly arrived at. In view of the fact that the circumstantial evidence supported the identification evidence, it is one with which I can find no basis to interfere. The result is that I must dismiss the appeal.