Choi Tin-ming v. The Queen
Read the full judgment text of CACC 196/1981 on BabelCite. This Court of Appeal judgment.
1. The Appellant, a Chinese man of 29 years of age, was charged with being in possession on 6th January of this year in wooden hut No. 9 at the rear of Fort Street in North Point on Hong Kong Island of a single packet of heroin mixture weighing .26 gm. and two syringes each with a needle fit and intended for the injection of a dangerous drug. He pleaded not guilty to each of the two charges, gave evidence on his own behalf, was convicted on both charges and ultimately on 13th February 1981 was s
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CACC000196/1981 ----------------- [Headnote] ----------------- Duty of Magistrate to enquire into obscurities arising in course of evidence. Mr. Michael Bunting instructed by the Director of Legal Aid assigned for the Appellant. Mr. Frank Wong, Assistant Principal Crown Counsel for the Respondent. IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 196 of 1981 -----------------
----------------- Coram: Hon. Baber, J. in Court Date of Judgment: 29th May, 1981 ----------------- JUDGMENT ----------------- 1. The Appellant, a Chinese man of 29 years of age, was charged with being in possession on 6th January of this year in wooden hut No. 9 at the rear of Fort Street in North Point on Hong Kong Island of a single packet of heroin mixture weighing .26 gm. and two syringes each with a needle fit and intended for the injection of a dangerous drug. He pleaded not guilty to each of the two charges, gave evidence on his own behalf, was convicted on both charges and ultimately on 13th February 1981 was sent to the Drug Addiction Treatment Centre. He was not legally represented before the Magistrate. Three days later he gave notice of appeal against conviction. By this time apparently the Magistrate had left Hong Kong on vacation leave and it was thus only on 10th May, 1981 after his return that he wrote his statement of findings. This may well account for an error in those findings in that they state that the Appellant did not cross-examine the second prosecution witness PC21234 who had gone with his colleaque the first prosecution witness PC10302 and possibly other police officers to the hut on the day in question. The minute of evidence of the trial shows that this witness who was in effect tendered for crossexamination was in fact asked something by the Appellant as a result of which he said in answer somewhat ambiguously "I only arrested you on that day". 2. The findings also contain what on the face of it appears to be a Non-Sequitur in the following terms: "I saw no reason to doubt the evidence of the appellant and convicted him on both counts." This is clearly nothing but a slip of the pen. The Magistrate clearly meant that he accepted the evidence given for the prosecution and accordingly convicted the Appellant. 3. The prosecution case was that a Police party entered the hut by the open rear door, found the Appellant inside and found in a drawer of a desk in front of his bed the packet of heroin and the two syringes which were later found by the Government Chemist to be contaminated with heroin. Only two witnesses were called by the prosecution as to the raid on the hut namely PC10302 and PC21234. Only the first of these PC10302 gave evidence as to the finding of the drugs. He added that the Appellant told him that he was the only person who lived in the hut and that the drugs and syringes were his. 4. When the Appellant crossexamined this witness a new matter arose. The witness agreed with the Appellant that at the time of the Appellant's arrest there was with the police party another man who had already been arrested. When he came to give evidence the Appellant alleged that the packet of drugs and the two syringes belonged to that man. He added "I saw the police carrying them", presumably referring to the time when the police arrived at the hut with the other man. The Appellant further added that the man was subsequently released. Because the question asked is not recorded it is not entirely clear from the single sentence shown as coming from PC21234 in crossexamination by the Appellant whether PC21234 was disputing that the police party had with them when they came to the Appellant's hut another man whom they had already placed under arrest. This was a matter of some importance. The Magistrate made no comment upon it in his Statement of Findings, in which, as I have said he wrongly stated that the Appellant had not crossexamined the witness. 5. In my opinion, the Appellant being unrepresented at the trial, the Magistrate would have been well advised to have intervened as soon as the Appellant raised with PC10302 the matter of the presence of the other man under arrest at the hut and asked the Appellant what significance for the trial he alleged that fact had. He might then have been able to put further questions to PC10302 which might have shed further light on the case and also to PC21234 and even later to the Appellant himself whose evidence in chief is recorded in only four short sentences. A Magistrate should not be afraid to ask questions of a witness or an accused person in the interests of justice when obscurities arise in the course of a trial, especially when an accused person is not legally represented. Of course he must adopt a neutral tone when so doing and not allow himself to appear to be a supernumerary prosecutor. 6. I am left with an uneasy feeling that the whole story was not before the Magistrate in this case. I do not speculate on what the result would have been had the evidence on either side been more ample than it was, but am of the opinion that on the evidence as it stands recorded the conviction is unsafe and accordingly I allow the Appeal and set it aside.
Representation: Mr. Michael Bunting instructed by the Director of Legal Aid assigned for the Appellant. Mr. Frank Wong, Assistant Principal Crown Counsel for the Respondent. |