THE QUEEN v. WU KWOK KEE

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JUDGMENT

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Duffy, J. (Giving the judgment of the court)

1. The applicant was, on 19th May 1989, convicted before His Honour Judge Leung of one charge of being in possession of 8.13 grammes of a mixture containing 0.53 grammes of salts of esters of morphine for the purposes of unlawful trafficking.

2. The applicant applies for leave to appeal against the conviction and, alternatively, against a sentence of 2½ years imprisonment which was imposed.

3. Though originally the applicant, so far as the appeal against conviction is concerned, appeared in person, Mr Macrae, instructed by the Legal Aid Department to appear only in relation to sentence, brought to our attention matters in relation to conviction which were obviously worthy of our close scrutiny. We, therefore, adjourned the matter until this afternoon requesting that the applicant be made an immediate grant of legal aid in respect of his application for leave to appeal against conviction. This has been done and Mr Macrae has addressed us in relation to the conviction.

4. The facts alleged were that on the 11th November 1988 around 2:30 p.m., the applicant was seen emerging from domestic premises at 1-3 Tsing Fung Street and was stopped by a police officer and searched. A packet of dangerous drugs were found as well as a paging machine and a bunch of keys. The drugs were later analysed and found to be the quantity of heroin described in the charge i.e. 8.13 grammes of a mixture containing 0.53 grammes of salts of esters of morphine.

5. The defendant was arrested and immediately claimed that these drugs were for his own consumption. He also went with the police officer to Flat C on the 1st floor of the premises to look for a man called "Ah Pok", whom the defendant claimed to be a friend of his for whom he had been looking. Ah Pok, who was in the premises, was questioned about the defendant by the police officer, apparently in the defendant's presence, and in his reasons for verdict the learned trial judge recites what it was that Ah Pok told the police officer.

6. As a result of subsequent enquiries, the investigation moved on to Room D27, 4th floor, Oceanic Mansion, 1026 King's Road, North Point in which another quantity of dangerous drugs, which is the subject matter of a 2nd charge of which the applicant was found not guilty, were found. The 2nd defendant, a co-defendant in relation to that 2nd charge, MAK Wai-sing, was found to be present during the search and he was arrested. He pleaded guilty to the 2nd charge. The keys which had been found upon the defendant were subsequently tested and found to fit the metal gate and the wooden door of the premises at Oceanic Mansion. The applicant was later cautioned in relation to these matters and made a statement to the police, which was produced in the case against him.

7. Among other things he said this:-

"This flat (and he was there referring to the Oceanic Mansion flat) has been rented from beginning to end by Mak Wai Sing. He invited me to sleep here. He gave me $100 everyday and asked me to sell white powder for him. However, the white powder sealing machine and the polythene bags in this flat having nothing to do with me. I had seen him packing white powder in the flat before."

The applicant himself gave evidence on his own behalf in which he again claimed that the drugs which had been found in his possession, that is the 8.13 grammes, were for his own consumption.

8. It was when referring to the learned trial Judge's reasons for sentence, that Mr Andrew Macrae pointed out to us that he had said this:-

"In a cautioned statement, the defendant said he was given $100 a day by D2 who asked him to sell white powder for him. On the evidence, the Court is satisfied that shortly before his arrest, he had attempted to deliver the dangerous drugs the subject matter of the 1st charge to a potential customer."

9. It seems that the learned trial Judge was there relying upon certain remarks which the man "Ah Pok" was reported to have made to the police officer, PC14797, who had been responsible for the arrest of the applicant and who had later taken him into Ah Pok's premises. Ah Pok was said to have told the officer inter alia that he had been waiting for the applicant to deliver to him a packet of drugs.

10. If the learned trial Judge relied on that evidence for his verdict, then in the absence of Ah Pok's own evidence to the same effect, he was clearly wrong. That evidence was, in the circumstances, hearsay and not admissible.

11. Later on in his findings, the learned trial Judge said this:-

"The Defendant admitted possession of the dangerous drugs the subject matter of the 1st charge. Because of the quantity involved, the presumption against him was that he had possession of the same for the purpose of unlawful trafficking. There being no acceptable evidence to the contrary. The Court is satisfied beyond a reasonable doubt that the Defendant had possession of the dangerous drugs in question for the purpose of unlawful trafficking."

12. Without more that statement of the situation is unimpeachable. However, there remains the real possibility that in coming to that conclusion, the learned trial Judge took into account the remarks which Ah Pok was alleged to have made, to which we have earlier referred, and which were clearly inadmissible as hearsay. That being the position we feel that the conviction in this case is unsafe and unsatisfactory and ought to be quashed and the sentence set aside. The application is treated as the appeal which is allowed.

13. However, as that finding is not based on any question of paucity of evidence or lack of quality in the evidence, it is, we feel, an appropriate case in which we should order that the matter be sent back to the District Court for retrial on a fresh charge sheet, and we so order.