HKSAR v. Weerasiri Narayanage Wijerathna

HCMA 418/2017
[2018] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 418 OF 2017

(ON APPEAL FROM TMCC 827 OF 2017)

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Before: Deputy High Court Judge C P Pang in Court

Date of Hearing: 8 January 2018

Date of Judgment: 8 January 2018

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J U D G M E N T

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1.After trial, the appellant was convicted of the offence of possession of dangerous drug, ie, 2 grammes of methamphetamine hydrochloride.  The magistrate sentenced the appellant to four months’ imprisonment.  The appellant now appeals against his conviction only.  He has been granted bail pending appeal.

2.During the trial, the defence challenged the chain of evidence regarding the drugs.  The defendant elected not to give evidence.  The magistrate was satisfied beyond reasonable doubt that the chain of evidence was established and the appellant was convicted accordingly.

3.In a Statement of Findings subsequently prepared, the magistrate stated that:

“On preparing this statement, it struck me prosecution has not tendered evidence that defendant knew at the time P3 was drug. Defendant speaks Punti but he remained silent upon arrest. Since defence counsel never raised it I have unfortunately overlooked it too. I have to concede the conviction is unsafe and unsatisfactory.”

4.Miss Ko, for the respondent, fairly concedes that the conviction cannot be upheld.  She only asks for a retrial of the case.

5.Miss Lai, counsel for the appellant, opposed an order for retrial.  She emphasises that the appellant had been remanded in custody for 19 days for the preparation of a Drug Addiction Treatment Centre report before he was sentenced to four months’ imprisonment.  That period of custody, taking into account the remission to be given by the Correctional Services Department, would be about one-fourth of the sentence.  It is submitted that the time lapse between the date of offence and the trial, and the time spent between the trial date and the appeal hearing should be taken into account.  In the circumstances of the case, it is submitted that it would be undesirable that the defendant has to go through the ordeal of another trial after a successful appeal.

6.I agree that the appeal must be allowed due to the magistrate’s concession that the conviction is unsafe and unsatisfactory, as a result of the omission admitted by the magistrate to consider the appellant’s knowledge of possession of the drug.  Both the conviction and sentence are therefore set aside.

Retrial

7.This court has a discretion to order a retrial when it allows an appeal against conviction.  In considering whether an order for retrial should be made, the court has to consider a number of factors.  In R v Holgate (No 2)[1], the Court of Appeal summarised the relevant considerations for a retrial as follows:

“On an application for a retrial, it is necessary for the court to consider all the surrounding circumstances. These include the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial, and the length of sentence which the appellant may have served.

It is necessary then to weigh the public interest in ensuring that those guilty of serious crimes are brought to justice and punished against the effects of putting a successful appellant through the ordeal of a further trial.  Obviously, if after all these matters have been considered, no reasonable prospect of a conviction after a new trial is demonstrated, one would not be ordered.”

8.The present case was a case of stop and search where dangerous drug was found on the person of the appellant.  In ordinary cases of this kind, the defendant’s knowledge of the drug would readily be inferred.  At the trial, the sole issue raised by the defence counsel was the chain of evidence.  The lack of knowledge defence was not raised.  The appellant did not give evidence.  The magistrate could have drawn the inference to find the requisite mens rea.  There is no fault on the part of the prosecution.  It was the error of the magistrate that renders the conviction unsatisfactory.

9.Interest of the appellant and the public must be weighed and balanced.  I give weight to the fact that the appellant has been in custody for 19 days.  The offence occurred about a year ago.  It will take another one or two months for the retrial to take place, if there was one.  The appellant indeed has to go through the ordeal of a new trial.

10.On the other hand, I must not ignore the interest of the public.  The public is concerned that those who are guilty of serious crime should be brought to justice and not escape because of an error in the trial proceedings.

11.Misuse of dangerous drug is a serious social problem in Hong Kong.  The appellant was allegedly in possession of 2 grammes of methamphetamine hydrochloride, commonly known as “Ice”.  When a custodial sentence has to be imposed, the offence of possession of dangerous drug normally carries a starting point of 12 to 18 months’ imprisonment.  The quantity of dangerous drug involved in this case is not very small.

12.The prosecution was not at fault at all in the proceedings.  There is, in my view, not a protracted lapse of time between the first trial and the possible second trial.  The appellant’s defence, focused on the chain of evidence, is unlikely to be prejudiced by the time lapse.

13.I have been informed by Miss Ko that the appellant is an asylum seeker.  His torture claim had been rejected by the Immigration Department.  The appeal against the decision was also refused by the Torture Claim Appeal Board in February last year.  Removal order has been issued by the Director of Immigration, which was placed in abeyance until all the court proceedings have been concluded.  I am told that there is not yet an application for leave to apply for judicial review by the appellant, but he might still make the application anytime, though out of time.

14.Miss Lai tells the court that the appellant is not aware of the refusal of the Torture Claim Appeal Board.  In any case, the appellant indicates that he wants to stay in Hong Kong continuously.  Given the intention of the appellant to remain in Hong Kong, a refusal for retrial will neither assist the appellant nor the authorities.

15.Having considered the history and all the circumstances of the case and balancing the interest of the public and the appellant, I am of the view that it is only fair that there should be a retrial of the case.  I make the order accordingly.  The trial will be heard by another magistrate.

Ms Catherine Ko, SADPP of the Department of Justice, for the respondent

Ms Annie Lai, assigned by the Legal Aid Department, for the appellant