Hui Nam-sing v. The Queen

CACC000149/1982

BETWEEN

Coram: Mr. Commissioner Davies in Court

Date: 22 March 1982

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JUDGMENT

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[Magistrates' Court. Failure to record finding of guilt prior to production of previous convictions and D.A.T.C. report. Conviction unsafe. Sentence. Failure to record whether accused informed of contents of report and invited to comment. Failure to record whether accused given opportunity to address in mitigation.]

1. The appellant HUI Nam-sing, who is not legally represented in this proceeding, has appealed against conviction and sentence.

2. The appeal against conviction. On 13th January 1982, the appellant was convicted by the learned magistrate of Possession of Dangerous Drugs for the purpose of Trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance.

3. This trial had taken place before the same magistrate two leeks earlier, on 30th December 1981.

4. The learned magistrate's record revealed procedural defects in the conduct of the trial which in the absence of any explanation were fatal to the conviction and for that reason Crown Counsel did not seek to support that conviction.

5. All the defects appear at the close of the prosecutor's cross-examination of the appellant.

6. Firstly, there is nothing on record to show that the appellant was afforded any opportunity to give further evidence arising out of the cross-examination - i.e. to "re-examine himself", had he so wished.

7. Similarly, the record does not show that the appellant had any opportunity, at the close of the evidence, to address the court on the merits of the case.

8. In the appeal case of LAM Kwok-ling and another v. R.⁽¹⁾, Cons, J. (as he then was) pointed out the desirability of an abbreviated note on the record to indicate that these rights had been granted to the defendant, whether or not he sought to take advantage of them.

9. At the same time, however, I also respectfully agree with the view of Cons, J. that one should be slow to interfere with a conviction on the ground of these defects alone.

10. Far more serious in the present case is the learned magistrate's failure to record any finding of guilty or not guilty at the close of the evidence.

11. As the record reads, immediately after the appellant was cross-examined, the learned magistrate was apparently made aware (how is not clear) that the appellant had four previous convictions, one of which was similar.

12. He then proceeded to send for a Drug Addiction Treatment Centre report. It was apparently only after that report was put before the learned magistrate two weeks later that he convicted the appellant.

13. As was said in KHOU Kwok-wai v. R.⁽²⁾, the appellate court must accept the record of the trial court as it finds it.

14. In the present case, that record on the face of it indicates that the learned magistrate knew of the appellant's criminal record and had read a Drug Addiction Treatment Centre report before he made any adjudication, and there is nothing in the Statement of Findings to indicate to the contrary.

15. In such circumstances, bearing in mind the obviously prejudicial value of the information put before the magistrate, it was clearly unsafe to allow the conviction to stand.

16. Since, however, it had been the appellant's case ab initio that he was in possession of the drugs, but for his own consumption only, and as the amount of drugs was comparatively small, I decided that the proper course was to set aside the conviction for the offence charged, and to substitute therefor a conviction for Possession of Dangerous Drugs under section 8(1)(a) of the Dangerous Drugs Ordinance.

17. The appeal against sentence. The setting aside of the original conviction and the substitution of a conviction for the lesser offence had its inevitable effect upon the sentence passed by the learned magistrate.

18. Had I been seined only of an appeal against sentence in this case however, I would again have been in great difficulty having regard to another defect apparent from the record.

19. The record shows that on the 13th January prior to sentence; "charge read and explained to defendant and understood by him".

20. Whilst I do not seek to criticise that, I am at a loss to understand why it was thought necessary to read the charge again to the appellant at that stage.

21. The next entry on the record reads simply: "Pre-sentence Report."

22. Thereafter, the learned magistrate proceeded to convict the appellant and sentence him to 2 years and 3 months imprisonment.

23. There is nothing to show that the contents of the report were made known to the appellant or that he was invited to comment on the report.

24. Equally, if not more important, however, is the absence of any indication that the appellant was asked if he had anything to say in mitigation before sentence was passed.

25. For these reasons alone, I would have been obliged to re-open the question of sentence in this case.

26. Regarding the sentence or order to follow upon the substituted conviction, I noted that the appellant had only one previous conviction which was relevant, and that was in January 1975, for Possession of Dangerous Drugs. Consequently, he was sent to the Drug Addiction Treatment Centre.

27. I had the advantage of reading the Drug Addiction Treatment Centre report which was furnished to the learned magistrate. It contains material favourable to the appellant, and he was considered suitable for further treatment.

28. For these reasons, I was inclined to make a D.A.T.C. Order, but the appellant asked me not to make a custodial order, on the grounds that he had married less than one year ago, and now has a baby son of 2 months old.

29. Accordingly I called for a Probation Officer's report, directed to the possibility of a probation order incorporating provisions for voluntary treatment for the appellant as and when required.

30. That report also was favourable to the appellant, expressing the Probation Officer's willingness and ability to arrange treatment facilities for the appellant whenever necessary.

31. With that in mind, I accordingly made an order placing the appellant on probation for 2 years, with special conditions that he shall undergo voluntary treatment for drug addiction if and when recommended by the Probation Officer, and that he shall submit to a urine test at least once per month, as directed by the Probation Officer.

(1)    Crim. App. 199 of 1976

(2)    Crim. App, 91 of 1977

Representation:

Appellant in person

Mr. Graham Jackson, Crown Counsel, for Crown/respondent