Lam Lai on v. The Queen

CACC000180/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 180 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 14 May 1970

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JUDGMENT

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1. The appellant is a young man aged 24. At the material time he was a warder in H.M. Prison at Stanley. He was charged with possession of a substantial quantity of dangerous drugs found upon him; by reason of the quantity so found the statutory presumption arose that it was not a case of simple possession but that the appellant was in possession of those dangerous drugs for the purposes of unlawful trafficking. He was further charged with introducing an unauthorised article into a prison. On both of those charges he was convicted and sentenced to 8 months' imprisonment in respect of the first charge, and 2 months' imprisonment in respect of the second charge; such sentences to run consecutively.

2. The brief facts of the case were that at about 1 p.m. on the 30th December a prison officer named Jaswan Singh was about to enter Stanley Prison through the wicket gate, which is itself built into the main gate, leading into the prison. He had in fact just entered through the gate. According to his evidence, immediately in front of him was a warder, who was in fact the appellant. The warder was some 4 to 6 yards in front of him and, according to the evidence of the prison officer, there was no one else in between them. The prison officer then saw the appellant pull a handkerchief out of his trousers pocket and, at the same time as he did so, some object that was then in his pocket fell to the ground. The prison officer at once called out "Foki, you have dropped something". The appellant turned his head but continued to walk on. The prison officer then approached the object which had been dropped and found that it was a packet contained in a small plastic bag and he at once formed the impression that that plastic bag contained dangerous drugs. It is sufficient to say at this stage that his impressions were subsequently confirmed because the contents of that bag were duly analysed and found to contain 5.3 grammes of salts of esters of morphine. Having picked up the packet he at once spoke to the appellant and said, according to his evidence, "Foki, this packet was dropped from your person". The appellant replied in Punti: "This packet is not mine; I don't know where you got it from". The prison officer then at once reported to the Chief Prison Officer who was in the yard at the time and was about 10 yards away from the main gate itself. The time between his picking up the packet and the time he reported to the Chief Prison Officer was a very short time and, according to the prison officer himself, he said that for about 5 seconds only he lost sight of the appellant.

3. Having reported the matter to the Prison Officer the appellant thereafter was almost immediately searched. It is right to state at once that no handkerchief appears to have been found in his possession. The case for the prosecution depended solely upon the testimony of the prison officer Jaswan Singh.

4. The defence put forward by the appellant was that there were in fact some 3 to 4 other persons, warders, between him and the prison officer at the time that he entered the gate. He denied that he had ever dropped this packet of dangerous drugs or, indeed, anything else from his pocket. He said that after he had entered the prison through the prison gate he proceeded at once to the Warders' Recess Room, which was only a distance of some 20 feet from the main gate. He entered the Recess Room and, according to his testimony, there were some 5 to 6 other warders in the room at the time. Whilst he was there, he says that Jaswan Singh came to the entrance of the Recess Room and called out in Punti "Who has lost anything?" and, according to the evidence of the appellant, some of the warders replied that they hadn't lost anything. Jaswan Singh then left and came back very shortly afterwards and specifically accused the appellant of having dropped this packet of dangerous drugs, saying to him, in terms, "I have seen you drop something." Jaswan Singh was then holding something in his hand and, according to the appellant, he said to him, "This is yours; this is white powder". The appellant at once indignantly denied that the packet was his or that he had anything to do with it at all.

5. The appellant's evidence was to a substantial extent corroborated by another warder. The other warder said that he himself was going on duty at about 1 o'clock when a number of warders were reporting for duty. He entered the main gate after Jaswan Singh and, according to his testimony, there were in fact two or three other warders between Jaswan Singh and the appellant, who was some few yards in front of Jaswan Singh. This witness stated that he saw Jaswan Singh bend down and pick up what he, the witness, described as a packet wrapped in was paper. He said - and it was not mentioned at all by the appellant - that Jaswan Singh then at once called out a few times, "Hey, who has lost something?", and no one answered. He said that he himself went to the Warders' Recess Room where he said that there were, at that time, over 10 persons in that room. He sat down in the room and the appellant was also there. He corroborates in terms the evidence that was put forward by the appellant that Jaswan Singh came to the threshold of the room and called out, enquiring "Has anyone lost anything? If so, come and get it back". Several warders replied that they hadn't in fact lost anything at all. He also confirmed that some short time later Jaswan Singh returned to the Warders' Room and specifically accused the appellant of having dropped this packet and said, "This is white powder, I saw it drop from you". He confirms that the appellant was then angry and abused the warder.

6. Those were the two directly contradictory stories with which the learned magistrate was confronted. He was clearly satisfied that there could be no question of a mistake on the part of the witness, Jaswan Singh, and he accepted his testimony that he had in fact seen the appellant drop this packet containing dangerous drugs. Upon that evidence he convicted the appellant, being satisfied, as he said, beyond reasonable doubt as to the truth of the prison officer's testimony.

7. A number of points have been raised by Mr. Lawrence Leong on behalf of the appellant. He complains of the comments recorded at the time by the learned magistrate on the record as to the view which he then took as to the credibility of the witnesses. It is relevant to refer to those comments contemporaneously recorded. At the conclusion of the testimony of the witness, Jaswan Singh, the learned magistrate put on the record "P.W. 2 (that was Jaswan Singh) struck me by his demeanour and his answers to cross-examination as a witness of truth". On the other hand, making a contemporaneous comment on the appellant's evidence he recorded, at the conclusion of that evidence, the words "Defendant's behaviour displayed that he was lying". Finally, with regard to the prison warder who was called to corroborate the appellant's testimony, he recorded "D.W. 3's demeanour disclosed that he was a clever but unbelievable witness".

8. Mr. Lawrence Leong submits with some force that the learned magistrate decided the case not on the evidence given but on "Behaviour, character and demeanour". Mr. Leong complains that it would seem apparent that the learned magistrate had pre-determined the case at an earlier stage, having heard the evidence of the main prosecution witness, Jaswan Singh, and describing him as a witness of truth. He submitted that to have reached such a conclusion at that stage and without having heard the defence at all, virtually amounted to a pre-judging and pre-determination of the case.

9. There are a number of Colonial Criminal Procedure Codes which do in fact - or did in fact - contain express provisions in those codes that a magistrate, if he so thought fit, could put on the record at the time, at the conclusion of the testimony of each witness, his views and impressions as to the credibility of that witness. Indeed, I have now before me the Criminal Procedure Code of Kenya, section 196 of which provides

"When a magistrate has recorded the evidence of a witness he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination."

That section is based upon and, indeed, almost identical with, section 363 of the Criminal Procedure Code of India. The object of such recorded comments made contemporaneously is that they give to the appellate court some idea of the weight and value attached by the trial court to the testimony of a witness. It is always of importance that an appellate court should know what importance a trial judge attaches to the testimony of a particular witness or witnesses. On the other hand, an obvious and justifiable criticism of the recording of such comments is, as Mr. Leong pointed out, that it leaves wide open the obvious criticism that by the making of such recorded comments the judge or magistrate has formed a premature opinion of a witness's credibility without the truth or accuracy of such evidence being tested in the light of what may subsequently be found to be wholly credible evidence which may show the testimony of the earlier witness to be unworthy of belief and, indeed, deliberately untruthful, or, alternatively, based on genuine but mistaken impressions. In my view, for this reason, the contemporaneous recording of such remarks as the learned magistrate has made seems to me a thoroughly undesirable practice and one which should not be followed. However, in this case the sole question was whether or not the testimony of Jaswan Singh was to be believed, whether he was deliberately lying, or whether it was reasonably possible that he had made a genuine mistake in thinking that the package had inadvertently fallen from the appellant's pocket at the same time as he pulled out his handkerchief. The learned magistrate was satisfied that there was no question of mistaken impressions and he was convinced as to the truth of Jaswan Singh's testimony. In the light of those findings of fact, although, as I have said, the comments recorded by the magistrate were undesirable, I am not satisfied that they were such as to justify me forming the conclusion that the magistrate had prematurely pre-judged the case and that I ought accordingly to allow this appeal on that ground.

10. Mr. Lawrence Leong has also complained of the fact that neither the appellant nor, indeed, his main defence witness, were challenged in cross-examination for the purpose of it being put to them that Jaswan Singh had in fact not uttered the words "Have you lost anything?" Mr. Leong submits that the very fact that those questions were not put to the defence witness was tantamount to an admission or concession by the Crown that their evidence on this aspect was accepted as true, that is to say, that Jaswan Singh had in fact gone to the threshold of the Warders' Recess Room and called out the words "Have you lost anything?" In this connection it is relevant to refer to the Full Court decision in the case of the Queen vs. Chan Chi Kong⁽¹⁾ where a similar point was taken. Dealing with that point Hogan, C.J., delivering the judgment of the Court said

"To say that failure to cross-examine amounts, in itself, to an admission does, I think, go too far, although such failure must inevitably put counsel in difficulty if he subsequently asks the court to disbelieve the evidence."

As I have earlier said, the whole case for the prosecution depended solely upon the testimony of Jaswan Singh. If his evidence was to be believed it was clear beyond doubt that the appellant, who was only walking a few yards in front of him with no one else in between, whilst pulling his handkerchief out of his pocket had inadvertently pulled out at the same time this packet containing dangerous drugs and causing it to fall to the ground If that evidence was true, then it is hardly surprising that the appellant, in such circumstances, would have immediately denied possession and knowledge of the packet. I am satisfied that there was sufficient evidence here to support the conviction and the appeal against conviction is accordingly dismissed.

11. As regards the matter of sentence, there is ample authority for the proposition that where two charges, and convictions on those two charges, arise out of the same set of facts, the sentences consequent upon those convictions should not be consecutive but should be concurrent. Although there might be some justification for the additional charge of introducing an unauthorised article into a prison, it is clear that that charge, in so far as the facts supporting it were concerned, was identical with the charge, and supporting facts, of possession of the dangerous drugs. The sentences imposed in this case were 8 months' imprisonment on the charge of possession of the drugs for the purposes of unlawful trafficking and 2 months' imprisonment on the charge of introducing an unauthorised article into a prison; such sentences to run consecutively. I am satisfied that it was wrong in principle for those sentences to be ordered to run consecutively. In my judgment the appellant was, indeed, fortunate in the leniency of the sentence in respect of the conviction for the unlawful possession of dangerous drugs for the purposes of trafficking. The sentences will be altered to one of 10 months' imprisonment on the first charge and 2 months' imprisonment on the second charge, such sentences to run concurrently.

Representation:

L. Leong (S.F. Sun & Co.) for Appellant.

Stapp, C.C. for Crown/Respondent.

(1) 1964 H.K.L.R. 782, at 789