Wong Hing v. The Queen

CACC000193/1979

Coram: Trainor

Date of Judgment: 23 March 1979

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JUDGMENT

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1. Wong Hing was charged in the Magistrate's Court with having dangerous drugs, 2.2 grammes of a mixture containing .6 gramme of salts of esters of morphine, heroin, in his possession for the purpose of unlawful trafficking. He was also charged with having in his possession "a match-box cover and five tinfoils fit and intended for the inhalation of a dangerous drug, namely match-box cover containing less than .1 gramme of salts of esters of morphine". I quote the wording of the second charge to draw attention to the absurd wording of that charge, a type formula that appears so often in charges in the Magistrates' Courts, in the hope that those who are responsible for the drafting of charges will apply a modicum of common sense to their efforts or alternatively that Magistrates will ensure that such nonsense is eradicated.

2. The evidence in the court below was that the accused when arrested was found to have in his hand a packet containing the drugs set out in the first charge. He was later taken to his home, a roof-top hut, and there there was found, underneath a mattress an empty match-box cover and five pieces of tinfoil. The Government Chemist found that the match-box cover had traces of salt of esters of morphine, less than .1 gramme.

3. The accused was found guilty on the first count and acquitted on the second. He appealed against his conviction and I allowed the appeal to the extent that I substituted a conviction for being in possession of dangerous drugs and I now give my reasons.

4. The ground of appeal on which counsel for the appellant relied was that in the circumstances of the case the learned Magistrate should have explained to the appellant at the outset of the trial the presumption of possession of dangerous drugs for unlawful trafficking when a person is found in possession of more than .5 gramme of a dangerous drug.

5. It was the contention of Mr. Bokhary that had the appellant, who was unrepresented in the court below, had the presumption explained to him at the outset he might have conducted his defence in an entirely different way. He submitted that as the quantity of drugs was very small, and as the appellant was also charged with possession of the means of inhaling heroin it should have been manifestly obvious to the Magistrate that there existed material which, on the Crown's allegation, could go a long way to rebut the presumption. He contended that in the circumstances the Magistrate should have explained the position to the accused at the outset, and that his explanation at the close of the Crown's case was not adequate.

6. So far back as 1972 the importance of explaining the presumption to an unrepresented accused was stressed. In that year Rigby C.J. said in Yip Choi-hoi v. R.C.A. 167/1972, 4

"Obviously, there can be cases where an accused is unrepresented .... where it is of vital importance in the interests of justice to explain to an accused who is charged with possession of dangerous drugs for the purpose of unlawful trafficking that the presumption of trafficking arises against him solely (if indeed that be the case) by reason of the amount of drugs ...... found in his possession".

Such was the position in the instant case. It was only by reason of the presumption arising because of the quantity of drugs found on him that the accused could have been convicted of possession for trafficking.

7. In Cheung Gee v. R. C.A. 432/1976 Huggins J., as he then was, in a similar situation allowed an appeal saying, P.2:

"Nevertheless the appellant was not warned of the possibility that the presumption would result in his conviction and had he been warned he might have put his case differently".

8. In those cases no explanation was given, but in Chan Leung v. R. C.A. 1205/1978 there was, at the close of the case for the Crown and Li J. refused the appeal. Li J., however, said, P6:

"In certain cases there may be reason to suggest that an appropriate moment to explain the presumption should be made at the beginning of the trial. This will be especially so if the prosecution opens the case and that the evidence to be adduced is known to the Magistrate".

In Man Wing-hing v. R. 75/1979, which was a case similar to Chan Leung v. R., the Court of Appeal felt it should follow the decision of Li J. In delivering the judgment of the Court Briggs C.J. said that an explanation of the effect of the presumption must be given by a magistrate to an unrepresented accused, and went on to say:

"But we think that the time at which such an explanation is given must depend upon the individual facts of each case .... There may well be cases where it would be appropriate for such an explanation to be given at an earlier period of time. We do not think it proper to state that the explanation must be given either at the opening of the case of the prosecution or at the closing of the case of the prosecution. We can see cases in which either is appropriate."

9. It is the duty of any judge to see that justice is done and he is bound to take such action as will ensure that end. That duty exists at all times and he must fulfil it even if it means interposing when an accused is represented. I am not at all suggesting that he "enter the arena" and conduct the defence; what I mean is that where there is a matter that might be available to the accused but is not forthcoming he should see if it is available and have it presented for consideration. An example that occurs to me is the case of provocation in a murder charge where provocation might exist but the accused or his counsel do not raise it. It is the duty of the trial judge nevertheless to present it to the jury for consideration.

10. But where an accused is unrepresented the burden of seeing that justice is done is heavier on the trial judge. He must ensure that the accused understands the charge that he faces and help him make his defence if he feels that the accused is unable to do so. An example of what I mean arises if an accused when afforded the opportunity to cross-examine a witness persists in making a statement. In such a case, in my opinion the bench should, if possible, formulate a question out of the statement and put it to the witness. By doing that it might avoid the accused later having to face in cross-examination the allegation that he had not challenged the evidence of the prosecution by cross examination, and that what he was saying in his evidence was an after-thought and untrue.

11. As I said earlier it is the function of a judge to see that justice is done, and that includes ensuring to the best of his ability that the accused is not convicted of a more serious offence than that which he has committed. That being so I think that when an accused is unrepresented and a magistrate is aware of facts that could reduce the existing charge to a lesser one he ought alert the accused to the possibility and, indeed, assist him to that end. This I think is particularly so in cases of possession of drugs for unlawful trafficking where the presumption arises because of the arbitrary fixing of the amount of drugs which raises the presumption and the amount found on the accused exceeds that amount but is an amount which might easily be in the accused's possession for his own consumption. Another point which occurs to me is that when magistrates in Hong Kong have middle aged men before them charged with possession of a quantity of drugs somewhat more than the quantity necessary to raise the presumption, in the vast majority of those cases the accused will have a number of previous convictions for possession of dangerous drugs. They will know that a conviction must result in a term of imprisonment and those previous convictions are likely to lead to a heavier sentence, and so they deny all knowledge of the drugs. What they may not realise is that the basic sentence for possession for trafficking will always be greater than that for simple possession. If they were aware of that such persons might well plead guilty to the lesser offence rather than lie and risk conviction for the greater offence with its heavier penalty.

12. In the instant case there was no possible doubt as to the correctness of the conclusion of the magistrate that the accused was in possession of the drugs, but I could not avoid the conclusion that had he been aware of the presumption and its implications he might well have pleaded guilty to simple possession rather than persist in the futile, lying defence that he raised. I was, perhaps, influenced somewhat by being aware of something of which the magistrate was unaware viz. that the appellant had ten previous convictions, nine of which were for simple possession of dangerous drugs.

13. Taking everything into consideration I felt that had the appellant been made aware of the presumption at the beginning of the case he might then or later have pleaded guilty to the lesser offence or conducted his defence in such a way as to meet the presumption and succeeded in rebutting it, and it occurred to me that he would not have had great difficulty in doing so. In the circumstances I felt that the conviction was unsafe and so I ruled as I stated earlier.

14. In conclusion I would like to make certain observations with regard to charges such as in this case.

15. I unreservedly and with respect concur with what has been said about the necessity to explain the presumptions which arise in drugs cases to unrepresented accused. Similarly I agree that the time when the explanation must be given depends on the circumstances in each case, but from a practical point of view it occurs to me that were a magistrate to give an explanation as soon as he realises that there is evidence that could rebut the presumption it might well reduce the number of appeals.

16. A further point which occurs to me is this. That even though a magistrate rejects in toto the evidence of an accused that does not preclude him from considering all the facts and deciding on the balance of probabilities that the presumption has been rebutted.

17. Let me give an extreme example. Supposing the police evidence is that an accused was seen through a window in his home produce a match box cover, tinfoil and a packet from which he extracted a white powder and go through the other preliminaries to inhaling heroin. The police rush in and seize everything. A government chemist certifies that the packet seized contains 2.2 grammes of a mixture containing .6 gramme of heroin. The accused denies that any such thing took place and that when the police entered he was preparing a meal. In such circumstances the magistrate would be entitled to conclude that the presumption that the possession was for unlawful trafficking had been rebutted. I refer to this simply because it would appear from some cases that unless the accused gives an explanation for his possession of the drugs then he has not on the balance of probabilities, rebutted the presumption. It is on the whole of the evidence, the truthful and the untruthful that the magistrate must decide.

Representation:

Mr. Bokhary (D.L.A.) assigned for appellant.

Mr. Boa, C.C. for Crown.