Chan Wing Shing v. The Queen

CACC000142/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 142 OF 1974

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 2nd May 1974.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against conviction. The Appellant was charged in the District Court with possession of dangerous drugs for the purpose of unlawful trafficking, under s.7 of the Dangerous Drugs Ordinance. After a trial he was convicted and sentenced to five years' imprisonment.

2. The evidence against him was very brief. The police, acting on information, were waiting in a resettlement estate and they saw the Appellant alight from a public light bus. He was carrying a plastic bag. They went up to him and arrested him. In the bag they found five packets which contained 49 smaller packets. These packets were taken with the Appellant to a police station and then to the Narcotics Bureau. There all the exhibits were sealed. They were subsequently taken to the Government Chemist. There is in the record before us a certificate from the Government Chemist stating that certain packets were examined by the Government Chemist and found to contain the dangerous drugs listed in the charge. The defence was that the Appellant was not carrying these drugs at all - that they were in the possession of a woman. That evidence was rejected by the learned judge.

3. Counsel for the Appellant does not suggest that there is any merit in the appeal which is brought but accepts that it is based entirely upon a technicality. It is a point which has properly been taken. It is to the effect that there is nothing to connect the certificate with the drugs which the judge has found were found upon the Appellant. It is necessary to refer in detail to the certificate. It states that on 19th November 1973 a sealed packet marked with a particular number and containing 49 packets and five pieces of paper were delivered to the Government Laboratory by Detective Constable 6908 and that they were returned on 21st November 1973. There was evidence before the Court that the exhibits seized from the Appellant were taken on 19th November, that they consisted of 49 packets and five pieces of paper and that they were taken by Detective Constable 6908. There was further evidence that they were returned on 21st November 1973. It is true that there is nothing on the record prior to the Reasons for Verdict which refers to the certificate. However, in the Reasons for Verdict, which were prepared some days after the conviction, the learned judge referred to the certificate. It was suggested that this certificate might have come into the hands of the learned judge after conviction but before the judgment was written. That we reject as being out of the question: the verdict having been given on the date of the trial, the learned judge must have had the certificate on that date or it could not have formed any part of his reasons for verdict.

4. The fact still remains that there is nothing on the record to show how this document came before the learned judge. These certificates are used day in and day out in the courts and, in the experience of the members of this Court, the more usual method has been for the certificate to be produced by the police officer, in which case the document is made an exhibit and marked as such. What happens is that the constable who took the drugs to the Government Chemist states that he received them back together with either a certificate - if he knows that it was a certificate - or a piece of paper and he identifies the certificate or the piece of paper. Counsel for the Crown, however, has told us that this is not the invariable practice and he submits that under the Evidence Ordinance it is not necessary that the document should be produced as an exhibit and, indeed, he suggests that perhaps the better course may be that it should not be so produced. He says that under s.23D a certificate in the proper form must be admitted in evidence upon its production without further proof and he says that in many cases the practice has been for counsel to produce the certificate and hand it to the judge. We see no objection to that course. The only point we would make there is that where evidence of any kind is admitted that fact ought to be recorded in the notes of evidence - and that was not done in the present case. Nevertheless, we are satisfied from the Reasons for Verdict that the document was produced to the learned judge.

5. Is there sufficient evidence here to connect this particular certificate with the particular drugs? In the present case we are satisfied that there was such evidence. It would be altogether too much of a co-incidence if all the matters which I have referred to as appearing in the certificate appeared also in another certificate relating to other drugs examined on the same day, having been taken by the same constable and having been returned on the same day. We are, therefore, satisfied that these drugs were sufficiently identified. We would, however, say that perhaps it is desirable, where drugs are taken to the Government Chemist, that there should be evidence given of the mark which is invariably put upon the drugs by the police - and in this case the mark is referred to in the certificate - so that there can be a cross-check that the certificate relates to the drugs which are seized from the accused person.

6. However, for the reasons given we are satisfied that this appeal must be dismissed.

7. I should, perhaps, have mentioned that there was another point which was taken by counsel. We have already indicated our rejection of the argument. He suggested that there was insufficient evidence in the present case that the drugs which were sent to the Government Chemist were those taken from the Appellant. The evidence was that those exhibits were taken to the Narcotics Bureau and that at the Narcotics Bureau they were sealed in the presence of the Accused and an inspector. It is true that there is no mention in the evidence of the time when they were so sealed but there is no doubt the evidence covers the fact that those were the exhibits seized. The goods were then, according to the evidence, put in a store in the Narcotics Bureau and three days later the sealed packet was taken to the Government Chemist. The suggestion was that that was not sufficient evidence to show that the goods taken to the Government Chemist were indeed those seized from the Appellant. In our view where goods have been sealed and have been put in a store there is sufficient evidence, in the absence of any suggestion to the contrary, that when the sealed packet is taken out it contains what was put into it in the first instance.

2nd May 1974.

Representation: