KONG KEI LAP v. THE QUEEN

CACC000088/1976

 

IN THE SUPREME COURT OF HONG KONG
	Criminal Appeal
	1976 No. 88

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BETWEEN
	KONG KEI LAP	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.A.

Date of Judgment: 24th February 1976.

 

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JUDGMENT

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1. This is a very simple case on the face of it, but apparently simple cases often present the greatest difficulty. The Appellant was charged with the unlawful possession of dangerous drugs. Police officers executed a raid on a room in Shek Kip Mei Estate. Three persons were inside and on the floor they found articles which they suspected - and which were proved - to contain dangerous drugs. One of the officers said that he cautioned the Appellant and that the Appellant confessed that these goods belonged to him and that they had nothing to do with his two friends. The same officer said that the Appellant admitted he was the tenant of the premises. After enquiries he released the other two men and took the Appellant back to the police station, where he was formally charged. The officer then says that he wrote down the caution in his notebook, that the Appellant wrote in the notebook "I understand" and:

".... he further wrote something down in my note-book. This was contained in line 1 to line 4 on page 60 of my note-book. Whilst he was writing, after he wrote it in part, he told me he did not know how to write. He asked me to write the last 2 sentences for him".

Now in fact there are only two sentences in the statement. It is, therefore, not clear what was the "something further" which the Appellant is supposed to have written. The Appellant admits writing the two signatures and the characters for "I understand" but denies writing anything else. The admission of the confession was challenged on the ground that he was threatened that he would be beaten by the police if he did not sign it. The magistrate held a voire dire and eventually admitted the statement.

2. The defence of the Appellant was that the police arrested all three men and then asked if any of them had previous convictions. When he confessed that he had previous convictions they fixed the possession on him and let the other two go. He says the truth was that he was merely visiting those premises: that the friend he went to visit was not in; that there were three other persons in the premises when he arrived, one of whom was in fact smoking dangerous drugs and who escaped when the police arrived, and that he merely waited there for his friend to come back.

3. The learned magistrate having heard all the evidence and seen the witnesses believed the evidence for the prosecution and convicted. This was a case where there was evidence on one side which was consistent with guilt and evidence on the other which was consistent with innocence and the magistrate had to make up his mind whether he was satisfied beyond all reasonable doubts that the Appellant was guilty.

4. In such circumstances it is always very difficult for an appellate court to say that the conviction cannot stand. As Mr. Polson fairly argues, if the magistrate had relied solely upon the oral confession at the time of the arrest no-one could have questioned this conviction, but it is obvious that the magistrate was impressed by the written confession, and the police officer's evidence as to that is open to the criticism which I have already made of it. I can say no more than that I have a doubt lurking in my mind whether or not this man was rightly convicted. He may have been rightly convicted, but in all the circumstances I do not think it is safe to allow the conviction to stand.

5. The appeal is allowed and the conviction set aside.

 

24th February 1976.

 

Representation: