CHAN WAI-MOU v. THE QUEEN

CACC001049/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 1049 OF 1974

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BETWEEN
	CHAN Wai-mou	Appellant
	and
	The Queen	Respondent

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Coram: Cons, J.

Date of Judgment: 7 January 1975

 

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JUDGMENT

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1. This appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking. That conviction rested solely on the evidence of one man, an officer of the Preventive Service, who claimed to have bought a packet of heroin from the appellant and which the appellant took from a black leather purse on the ground in front of where he was squatting down. The other packets were found in the purse. The purchase was paid for with a marked ten-dollar note, which the witness later recovered together with another $30 from the appellant's right-hand trouser pocket. What value there can be in marking a currency note when the only witness as to its recovery from the criminal is the person who passed it to him in the first place I fail to see. Any "independence" of the evidence is immediately lost. Nevertheless it appears to be a common practice. When cross-examined the officer claimed to have searched the other pockets of the appellant, but could not remember whether or not any further money was found.

2. The defence put forward was that it was a frame-up, in the sense that the sale was fictitious and the purse picked up by the officer merely as the appellant walked past it on his way to lunch. To support his suggestion that the officer was not truthful in his evidence the appellant had alleged that he was not searched at all on arrest, otherwise the officer would have found some $54, mostly in notes, that he was then carrying. That he was carrying such a sum is now a proven fact. The money is part of his personal property. Unfortunately it was not produced at the trial. That was basically the fault of the appellant, but he was not represented then. Nor were the contents of his property endorsed on the charge sheet as is sometimes the case. The magistrate was, therefore, not aware of the fact of the further money. If he had been, it may have made a difference to his decision. Possession of money is an important factor in the investigation of trafficking in dangerous drugs and one would have expected the officer to have taken possession of the further amount, or at least to have noted its presence if he had indeed searched the appellant as he claimed. I do not say that the learned magistrate would necessarily have come to another decision. There are indications in the appellant's evidence that he himself was not absolutely truthful. But in the circumstances I am of the opinion that it would be unsafe to allow the conviction to stand.

  

Representation:

T.J.R. Carolan, Sr. Crown Counsel, for the Respondent.

Appellant in person.