SIU MAN-WAI v. THE QUEEN

CACC000380/1981

 

IN THE SUPREME COURT
	Criminal Appeal
	1981 No. 380

 

BETWEEN:
	SIU MAN-WAI	Appellant
	and
	THE QUEEN	Respondent

Coram: Liu, J. in Court

Date of Judgment: 26th May, 1981

 

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JUDGMENT

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1. On the 2nd March 1981, the appellant was alone confronted by two police officers in the male changing room of the Tsun Yip Street Playground, Kwun Tong. The appellant was seen holding a packet of cigarettes. He explained to the police that he was taking a rest from his place of employment nearby.

2. Under the bench on which the appellant was seated, were found divers equipments fit for the injection of dangerous drugs. It is quite unnecessary for me to condescend to particulars. The appellant was suspected by the officers to be involved with some of these equipments retrieved. The appellant denied control or ownership of any thereof. To the caution administered by a police officer, the appellant gave no reply. However, according to P. C. Chan for reasons unknown the appellant had a sudden change of attitude and owned up to having injected a dangerous drug into his vein.

3. P.C. Chan had earlier testified that he found needle marks on one arm of the appellant. Another P.C., Kong, was more specific that needle marks were observed on his left arm. This officer also corroborated the alleged confession made by the appellant.

4. At the trial, the learned Magistrate invited the appellant to bare his arms. Thereupon, it was found needle marks not on one but on both arms of the appellant. The appellant explained to the court that they were needle marks punctured a long time in the past, approximately 3 years' ago.

5. In the light of the circumstances in which the alleged confession was said to have been volunteered, it was understandable that no reference was made to such alleged oral admission of guilt in the Statement of Findings. The learned Magistrate relied heavily on his own observation of the needle marks over both arms of the appellant for the diagnosis that they were of recent origin. Thus, the Court erroneously assumed the role of a medical expert. Moreover, there was no evidence to particularise as to which of the needle marks or on which arm was a fresh puncture. The appellant was arrested on the 2nd March and Was brought to trial on the 19th March. Some of the needle marks on his left arm must therefore have aged for more than a fortnight.

6. The learned Magistrate concluded -

"	Having seen (the needle marks) I am convinced that they were of recent origin."
"	To my mind the marks on the appellant's arms would only lead to the conclusion that the appellant was a drug dependent and the items found in the changing room had been put there by the appellant."

7. The appellant had, for some time, been in detention before his trial. There was no telling, even if all the needle marks had in fact been of recent origin, whether they were not or could not have been caused after the appellant's arrest. There was no warrant for relating any of these needle marks back to the pre-arrest era.

8. Even if the assumptions in respect of the needle marks were to be wholly accepted, possession or control of the paraphernalia nearby could not be the only reasonable inference to be drawn therefrom. The evidence does not permit me to draw the "inescapable inference" as did the learned Magistrate, that the articles under the bench must have been deposited by and thus in the possession or control of the appellant.

9. Consequently, the verdict founded on matters hereinbefore discussed is unsupportable, and the appeal of the appellant must be allowed, conviction quashed and his sentence set aside.

 

 

	(B. Liu)
	Judge of the High Court

 

Representation:

Mr. Whitehouse, Counsel for the Respondent.

Appellant in person.