Lau Cheuk Ming v. The Queen

CACC000204/1979

Coram: Trainor, J.

Date of Judgment: 9 March 1979

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JUDGMENT

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1. Lau Cheuk Ming was convicted for possession of dangerous drugs for the purpose of unlawful trafficking, possession of an offensive weapon in a public place and resisting arrest. Against his conviction on each of those counts he now appeals.

2. The evidence against the appellant was provided by two police officers. The first police officer said that at 10.25 p.m. on the 23rd November, 1978 he was on duty with a colleague. He said he saw two males standing in front of a vegetable stall and, for some reason that is not easy to discern, he suspected them of possessing dangerous drugs. He said he told his colleague, and I quote what he said:

"who was nearby walking on the right hand pavement of Min Street. I was on the left hand pavement of Min Street."

The witness said that he went to the stall and the two men saw him and ran away. He said he pursued one and his colleague pursued the other. He said he succeeded in arresting the appellant after a chase of a bit less than 10 feet (sic). He said that there was a struggle and his colleague returned and gave him assistance and with the assistance of the colleague he hand-cuffed the appellant. He said he searched the accused and found a knife tucked into the waist pocket on the right hand side. He said he found a handkerchief which when examined revealed three packets, one large and two small. The large one was a brown paper packet and the two small one were in what he said were newspaper wrappings. Those wrappings of the two smaller ones are matters of the gravest importance.

3. The evidence of the second witness was substantially the same, and he said that they took the appellant back to the police station in the private car of the second witness. Where it was parked while the two officers were walking along Min Street was not disclosed.

4. The story of the appellant is that he was walking down Shanghai Street when a car pulled up beside him and one of the occupants spoke to him. He said that the person who spoke to him was the second witness. He said he was asked to get into the car and although at first he did not want to do so he knew that one of these persons was a police officer so he got in. He said he was asked if he had committed any crime and he denied that. He said he was then taken to the police station where he was accused of being very cheeky. He said he was beaten and asked to co-operate, and later a knife was produced and also some white powder. The appellant said that P.W.2 tore a piece of a page from a journal or magazine and wrapped up the white powder into three packets. There is an error in that description so far as I can see from the exhibits that were produced as one of the packets is of brown paper but that is immaterial. What is material is that two of the packets were of that sort of paper. The appellant said that he saw the police officer tear a piece of paper out of the journal and wrap up the white powder. Later the appellant said he found an opportunity to tear some of the remaining portion of the page which he kept. When he was before the learned magistrate he suggested that the journal from which the paper had been torn was still in the police station and could be seen by any one who went there. He tried to persuade the learned magistrate to go to the police station but the magistrate declined. He told the magistrate that he had with him in the cell in the Magistracy the piece of paper that he took from the journal.

5. The Court adjourned for a short time and the appellant went down to the cell and brought back a piece of paper which he alleged was the rest, or at least part of the rest of the page that was torn to wrap up the drugs.

6. When the learned magistrate wrote his Statement of Findings he dealt with this matter and I shall refer to what he said in a moment. But his Statement of Findings, if I may say so with respect, is very little more than a repetition of the evidence that was given by the witnesses when they were in the witness box. That repetition was of no great help to me because I could have seen it from the record. The learned magistrate said that he had observed the demeanour of the two police officers when they gave their evidence and he thought their evidence had a ring of truth. He said that he did not consider their cross-examination, which ran to about three questions, had done anything to lessen his estimation of their evidence. He then said that he came to the conclusion that the evidence of the appellant was not true and he thought, and this is important, that the production of the piece of paper did not assist the appellant.

7. It would appear that no effort was made in the court below to compare the paper which the appellant produced to the court with that in which the drugs were wrapped. Had that been done one must immediately have been impressed, even though one did not know Chinese, with the similarity of the pieces of paper and considered that they might well have come from the same page. I examined these pieces of paper and that was obvious to me, but in addition I had the assistance of my very able interpreter who expressed in the most positive terms that the two pieces came from the same page. Moreover, when Mr. Cotsen had an opportunity of looking at them he invoked the assistance of the Inspector in charge of the case. The Inspector agreed with the opinion of my interpreter.

8. Had the pieces of paper been examined by the learned magistrate in the court below it must have aroused the gravest suspicion with regard to the evidence of the two prosecution witnesses, and it must have added considerable weight to the evidence of the appellant. Had this examination been made I do not think that the learned magistrate would have said without further ado:

"I do not think this production of the piece of the magazine paper assisted his case in any way."

As I see it this case reeks of suspicion. I will allow the appeal and I will ask Mr. Cotsen to take these exhibits and I would suggest that they be used in a most searching inquiry to find out how it could happen that of those two pieces of paper one is found wrapping the drugs that were alleged to have been found on the accused in Shanghai Street and the other, as alleged by the appellant was torn from a journal in the police station; both pieces apparently having been torn from the same page.

Representation:

Appellant in person.

Mr. Cotsen, C.C. for Crown.