Leung Chung Wing v. The Queen
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CACC000201/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 201 OF 1980 -----------------
----------------- Coram: Bewley, J. in Court Date of Judgment: 25 April 1980 ----------------- JUDGMENT ----------------- 1. The appellant appealed against his conviction on two charges of trafficking in dangerous drugs and against sentence of two years imprisonment on each charge concurrent. 2. At the conclusion of the hearing, I allowed the appeal and quashed the convictions, but ordered that the case be tried de novo before another magistrate. I now give my reasons. 3. D.C. 13637 of the Triad Society Division gave evidence that on the 22nd October, 1979, he had gone with D.C.8894 to Wang Tau Hom Estate, in plain clothes, with instructions to try to buy heroin. 4. At about 8.25 p.m. the appellant approached him, and it was soon established that he was willing to sell heroin. They went to the first floor of Block 2, where the D.C. gave him $100. The appellant entered a room and, on his return, gave the D.C. a small packet, which was subsequently analysed by the Government Chemist and found to contain heroin. 5. Eight days later both officers returned to Wang Tau Hom Estate, again looking for drug traffickers. When D.C.13637 reached Block 3, he heard a shout from upstairs, "Brother - Do you want to get stuff". He looked up and saw the appellant in the fourth floor corridor. He walked up the staircase and asked the appellant for a $60 packet of heroin. He gave him the money and was told to go to the first floor corridor of Block 2. Five minutes later the appellant appeared with a small packet, which was also later found to contain heroin. 6. On the 8th November, at 6.40 a.m., D.C.13637 was again on duty in Wang Tau Hom Estate, but this time he was with D.C.14509 and another unidentified officer. He saw the appellant on the ground floor of Block 2 and arrested him for selling dangerous drugs. The appellant was cautioned by D.C.14509, but said nothing. He was then taken to the police station. 7. The officer was cross-examined briefly. The Learned Magistrate then recorded that there was other police evidence available to confirm the chain of evidence in respect of the dangerous drugs prior to analysis, and also from D.C.14509 concerning the appellant's arrest, but that the Court did not consider this evidence necessary in the circumstances. Thereupon the prosecution closed its case. 8. The appellant, who lived in Block 3 of Wang Tau Hom Estate, denied selling drugs to D.C.13637 on either occasion and, in fact, denied ever having met him before his arrest. He was a hawker and he normally finished work at 7.30 p.m. and then went home. However, he could not remember what he was doing on the two evenings in question. 9. It is then recorded, "Court considers evidence from D.C.8894 may be relevant to corroborate evidence of P.W. 1 and he is called to give evidence". This officer then gave evidence, which was brief, but which corroborated that of D.C.13637. 10. The Learned Magistrate thereupon convicted the appellant, on both charges, recording at the same time that the prosecution evidence had been corroborated and that he did not believe the appellant's evidence that the transactions had not taken place. 11. In his Statement of Findings the Learned Magistrate states that he accepted the evidence of the prosecution witnesses. He does not, However, give any reasons for calling D.C.8894 at such a late stage of the proceedings, nor does he evaluate either officer as a witness, or give any reasons why he accepted their evidence and rejected that of the defendant. He merely records that the evidence of D.C.8894 corroborates that of D.C.13637. 12. Counsel for the Crown conceded that there had been a material irregularity in the calling of D.C.8894 at the close of the defence case and that the conviction could not stand. 13. The Court has a right to call a witness not called either by the prosecution or the defence, if in his opinion it is necessary in the interests of justice (R. v. Wallwork)(1). In order that injustice should not be done to a defendant, however, the calling of such a witness after the close of the case for the defence should generally be limited to cases where something has arisen on the part of the defendant ex improviso, which no human ingenuity could foresee (R. v. Harris)(2). 14. That was not the situation in this case. Had the D.C.'s evidence been purely formal, or of only marginal relevance or importance, different considerations might apply, but the reference in his reasons for verdict to corroboration indicate that the Learned Magistrate considerable that it was of considerable importance. 15. Had it been otherwise, he would surely have proceeded to conviction immediately after the defendant's evidence. The inference is that he was not, at that stage, satisfied beyond reasonable doubt of the defendant's guilt. The calling of the additional evidence was a material irregularity that clearly prejudiced the appellant. It was necessary, therefore, to allow the appeal and to quash the convictions. 16. Counsel for the Crown submitted that the case should be sent back to the Magistrate's Court for retrial. Neither witness was seriously tested in cross-examination and, had D.C.8894 been called at the proper time, it is apparent that the prosecution would have had a strong case. I also had regard to the nature of the charges. The selling of heroin, even in small quantities, is a very serious matter. 17. Taking these factors into account, I was satisfied that justice required that the appellant stand trial a second time. 18. I would add this. It is for the prosecuting officer in a Magistrate's Court to decide, either by himself or in consultation with other police officers or crown counsel, what evidence to call. He should not seek the Court's guidance. Nor should a magistrate indicate during the prosecution case what evidence is, or is not, in his opinion, necessary in order to secure a conviction. By so doing, he may give an unrepresented defendant the impression that he is on the side of the prosecution.
Representation: Mr Mohan Bharwaney (D.L.A.) for appellant Mr Martin, Crown Counsel, for respondent (1) (1958) 42 Criminal Appeal Reports 153 (2) (1927) 2 KB 587 20 Criminal Appeal Reports 86 |