HUI NGOK v. THE QUEEN

CACC000754/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 754 OF 1974

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BETWEEN
	HUI NGOK	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.

Date of Judgment: 25th September 1974.

 

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JUDGMENT

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1. The Appellant was originally charged before the magistrate with two charges of possession of dangerous drugs for the purpose of unlawful trafficking. At some stage, but it is not quite clear when, an amended Charge Sheet was filed and was accepted by the magistrate. This was a charge of possession of dangerous drugs for the purpose of unlawful trafficking and that charge related both to drugs found on the person of the Appellant and to other drugs found in his home. The appeal is against conviction, and the contention of the Appellant before me, as it was before the learned magistrate, has been that the whole of the case against him was fabricated by the police.

2. There was clear evidence by police officers that they stopped the Appellant in the street and searched him and that they found what they suspected were dangerous drugs. As a result of questions put to the Appellant he was later taken to his home, and the police said that they there found the rest of the drugs. The Appellant denied that any drugs were found on his person or in his home. He maintained that he was tortured at the police station and compelled to admit possession of the drugs, although it may be observed that there was no attempt by the prosecution to put in evidence any confession.

3. In his Statement of Findings the learned magistrate purports to set out the facts that he found, but the so called "facts" were indeed nothing more than a repetition of the evidence. At the close of his reasons he first said:

	"In assessing the evidence I took into consideration the following:-
	(a) the burden of proof was on the prosecution to prove beyond a reasonable doubt.
	(b) the contradicting evidence of the appellant and his own witness - Yau Ka Shui".

The learned magistrate then went on to refer to previous convictions and ended up by saying:

"I have no doubts at all of the appellant's guilt and that the appellant was not telling the truth ..."

I will assume that he did not have any regard to previous convictions in arriving at his verdict and I will also assume that he took into consideration not only the evidence of the defence but also the evidence of the prosecution. What however, does raise a question is his reference to the burden of proof. In my view there was no evidence at all which would have justified the learned magistrate in finding that the possession of these drugs was for the purpose of unlawful trafficking and the only basis upon which the conviction could be supported would be that the presumption of intent to traffick applied. The quantity of drugs alleged to have been found was sufficient to raise that presumption, and it is clear that the magistrate must have been satisfied that the Appellant was in possession of them. As the magistrate said that he disbelieved the Appellant's story, it is clear furthermore that the burden which was placed on the Appellant to show that his possession was not for the purpose of trafficking could not have been discharged. As I say, the learned magistrate clearly believed the story of the police witnesses, and I see no reason to believe that he was wrong in so doing. Accordingly I think the verdict can be supported for reasons other than those given by the learned magistrate and the appeal is dismissed.

 

25th September 1974.

 

Representation: