Lam Man Woo v. The Queen

CACC000251/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 251 OF 1974

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Coram: Huggins, J.

Date of Judgment: 27th June 1974.

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JUDGMENT

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1. This appeal raises matters which are of considerable interest and importance. It first came on before Leonard, J., but the Appellant was not then professionally represented. The learned judge took the view that the case ought to be fully argued and granted an adjournment so that the Appellant could obtain free legal aid.

2. The Appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking. The particulars showed that the offence related to three quantities of drugs alleged to have been found on him in the Out-patient Department of the Stanley Prison Hospital. Upon his arraignment at the trial the Appellant said:

"I plead guilty to possession for my own use".

Although the record does not expressly so state, it is apparent that the learned magistrate quite correctly treated this as a plea of Not guilty. What then happened was this. First the learned magistrate explained to the Appellant the provisions of s.46 of the Dangerous Drugs Ordinance, which creates a presumption of the purpose of trafficking. Then there was read to the Appellant the "Brief Facts of Case" prepared by the police officer in charge of the case. The purpose of doing that was presumably to inform the magistrate of what the prosecution would seek to prove and to warn the Appellant of the case he had to meet. The record reads like this:

"Facts read - admitted".

The learned magistrate then appears to have admitted as exhibits the drugs themselves and a certificate from the Government Chemist. These exhibits proved nothing material which had not already been admitted by the Appellant, if what he had said amounted to an admission, and it is not clear why they were admitted in evidence. No further evidence was adduced by the prosecution but the Appellant did not sub it that there was no case for him to answer. He elected to give evidence on oath and thereafter he called as a witness another prisoner, who asserted that the drugs belonged to a third prisoner, No.4678. It was the Appellant's case that "the drugs" (whatever that referred to) had been given to him by No. 4678 to keep for him, but that was not believed. No. 4678 was available but was not called by the Appellant. The learned magistrate asked to see him and he was brought into court, but was not sworn.

3. The main contention on the appeal has been that there was no evidence to support the conviction for possession for the purpose of unlawful trafficking. There was no direct evidence of the intention to traffic and it is clear that the verdict was based upon a presumption of such an intention. Counsel submits that there was no foundation for that presumption because, he says, there was no evidence that the Appellant was in possession of the drugs at all. Indeed, his argument involved a contention that the only evidence properly before the court at the close of the prosecution case was the certificate of analysis. One thing is certain: the Crown produced no witness to give evidence of the actual finding of the drugs in the possession of the Appellant and must rely upon an admission by the Appellant. We shall have to consider later whether the Appellant made an admission of possession of all the drugs when he gave evidence.

4. There is a secondary argument which should be disposed of here. It is submitted that if there was a binding admission of unlawful possession of the drugs particularised in the charge it was nevertheless not open to the magistrate to base any inferences wholly or in part upon that possession and that the magistrate should not have inferred the purpose of unlawful trafficking from the possession and the quantity of drugs found. This submission was founded upon William KWAN Cheuk-yin v. Reg. 1973 H.K.L.R. 335. In my view the argument fails at two points. First, I do not think the case cited is authority for the proposition that inferences can never be based upon admitted facts. As I understand it the court there reached its conclusion upon the narrow ground that the parties had agreed that the facts admitted under s.65C of the Criminal Procedure Ordinance should be treated as being the entire facts, and I do not think the restriction upon drawing inferences should be extended beyond that. Secondly, Mr. Niamatullah is right when he says that the learned magistrate did not draw on inference but applied a presumption. No doubt it is open to a court to draw an inference that drugs are in possession for the purpose of trafficking where the quantity is very large (WONG Yin-yu v. Reg. 1972 H.K.L.R. 6) but in the present ...(illegible) the Statement of Findings makes it clear that the magistrate was applying the presumption and he duly considered whether the presumption had been rebutted.

5. If the Appellant did not admit possession of all the drugs when he gave evidence, then any admission must have been made at an ...(illegible) stage in the proceedings and it is argued on his behalf that it was not possible for him so to make a binding admission. Until the amendment of the Criminal Procedure Ordinance by the addition of s.65C an accused person could not make a binding admission and everything had to be strictly proved. It is submitted by counsel for the Appellant, and not contested by counsel for the Respondent, that s.65C does not extend to a defendant who is not professionally represented at the trial. Subsection (1) provides that binding admissions of fact may be made by (or on behalf of) a defendant, but only "subject to the provisions of this section". It is then said that sub-s. (2) gives an exhaustive statement of the manner in which such admission may be made. The subsection reads:

"An admission under this section -

With respect I do not interpret that as intending to provide an exhaustive code. It does introduce conditions which must be complied with where the circumstances make them applicable. Paragraph (d) applies only where the admission is made "on behalf of a defendant" and para. (e) pre-supposes that the defendant will be professionally represented at the trial. The latter paragraph says that the admission must be approved "by his counsel or solicitor" and not "by counsel or solicitor": there is no obligation on a defendant to employ a barrister or solicitor simply for the purpose of making on admission, but if he does have a representative an admission made without the representative's approval is not binding. The object of the Legislature, as I understand it, was to safeguard a defendant who does have a professional adviser from acting without his approval. It would be strange if, since the concept of admissions in criminal cases has been adopted, an unrepresented defendant has been allowed to plead guilty to the offence charged but not to make more limited admissions. I confess to some doubt whether the use of the word whether" rather than "either" in the parenthesis can properly be taken as confirming the interpretation which I have adopted or is a more inelegance of expression.

6. Having decided that it was possible for the Appellant to make a binding admission I must now consider whether he did in fact make such an admission and, it he did, whether the magistrate acted upon it. Immediately, after the Appellant had pleaded, the prosecutor stated that he relied "only on the presumption". That would suggest that he in fact relied upon the plea as giving rise to the presumption. Mr. Li submits that, although the plea has properly (in accordance with s.19 of the Magistrates Ordinance) been recorded in the words of the Appellant himself, it was in effect a plea of Not guilty and nothing more. That is to say, everything was put in issue and had to be proved: the admission of possession of the drugs in the charge was not evidence for that purpose. There is much to be said for this legalistic approach. If such an admission of possession had been made before the trial there is no doubt that it could have been made part of the prosecution's case only if a witness were called to speak to the admission. If there had been a jury the same would clearly have applied in the present case, because the admission would not have been heard by the jury, no jury having been empanelled at the time of the plea. Does it make any difference that the admission was made within the hearing of the magistrate, who was the judge of fact as well as of law? It was recently held by the Full Court that, where a question arises on the general issue whether certain evidence has been given in the course of a voire dire held to enquire into the admissibility of a confession, it is unnecessary in the District Court to call a witness to testify to what has been said. Similarly, although what is said upon arraignment is not strictly evidence it does seem to me that it would be a little absurd that the prosecution should have to call someone who heard the plea, other than the judge, to give evidence about it when it has already appeared on the record. The difficulty remains, however, that a defendant is entitled to know what evidence the prosecution is relying upon. William KWAN Chouk-yin v. Reg. (supra) was a case where the defence was left in no doubt that an admission was relied upon. In the present case there was nothing to show clearly that the prosecution was relying upon the admission made upon arraignment. It is true that at the time the prosecutor first referred to the presumption the plea was the only possible evidence which could give rise to a presumption, but he immediately proceeded to give the impression that he was not relying upon that admission because he then read the Statement of Facts. Such a reading could only be appropriate if it were intended to stand as his opening address, and an opening address normally precedes the evidence upon which it is intended to rely. Section 65C does not prescribe any set form of words for recording an admission but two things must be clear, (a) that an admission is being made for the purpose of the trial and (b) what is the precise extent of the admission. As to the second of these requirements the English Court of Appeal said in Reg. v. Lennard 1973 1 W.L.R. 483, 486:

"Admissions can be made in many ways and it is not for this Court to issue a practice direction; but we do say that whenever admissions are made, the manner of doing so should be such that what has been admitted should appear clearly on the shorthand note".

I respectfully adopt that passage, but it is the first requirement which in my view was not satisfied here if reliance was being placed on the plea.

7. There can be no doubt that when the Appellant admitted the "Brief Facts of Case" he was doing so for the purpose of the trial, nor can the extent of the admission be in doubt, for the document was there. However, the question which springs to mind on a reading of the record is how it came about that the Appellant admitted what had been read to him. On a plea of Guilty one commonly sees a note in the form we find here, because although a defendant may confess to the crime charged it is still necessary to ascertain that he admits all the circumstances of the crime alleged by the prosecution. For that purpose it is perfectly proper for a magistrate to ask the defendant whether he admits the facts. It is otherwise where the plea is Not guilty: a defendant who has put himself upon his country may not be questioned about the facts unless and until he has elected to give evidence upon oath, for otherwise the trial assumes the appearance of an inquisition and that is contrary to the basic principles of English law as applicable in Hong Kong. Neither counsel who has appeared before me was in the court below and they cannot tell me what happened there. Counsel for the Crown conceded that there was ground for anxiety because, although not impossible, it seemed unlikely that the Appellant would have admitted all the facts unless he had been invited to do so. In this connection it is to be noted that the Statement of Facts read to the Appellant included several matters upon which he could have had no personal knowledge and which he might well be slow to admit. Mr. Li has also pointed out that when the Appellant subsequently gave oral evidence what he said could be read as admitting possession of only one of the three lots of drugs: although he said he had "the drugs" "for my own possession" but "not for my own use", he went on to refer to their being in his rectum. It is common ground that only one of the three lots of drugs was in his rectum and that the quantity found there has not been proved, it having been weighed together with a second 1st. Towards the end of his Statement of Findings the magistrate said that in his evidence the Defendant "made no mention of the drugs that were found in his hand". Unless that was, as Mr. Niamatullah suggests, a slip, the Defendant did not in his evidence admit possession of all the drugs. If the oral evidence does relate only to the one lot, Mr. Li submits, it is even more unlikely that the Appellant had previously volunteered an admission to possession of all three lots. Against all this it would be wrong to assume an error on the part of the learned magistrate where such error cannot be shown with certainty, and, not without hesitation, I have come to the conclusion that the possible error has not been established. Nevertheless, I am left with a lurking doubt whether justice has been done and on that basis I am disposed to quash the verdict.

8. Mr. Li has invited me to hear further argument as to whether any other order ought to be made in the event which has now happened.

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9. The Crown has now indicated that it would be content if I were to enter a conviction for unlawful possession of the one lot of drugs found in the Appellant's rectum in place of the conviction for possession for the purpose of unlawful trafficking of the three lots particul rised in the charge. In all the circumstances I think that would be just.

10. That leaves the question of sentence. My difficulty here is that, with respect to the learned magistrate, I think the sentence of 18 months' imprisonment he imposed for the offence of which the Appellant was convicted was manifestly inadequate: it was barely appropriate for simple unlawful possession of the same quantities of drugs. Drugs offences within a prison must always be regarded as very serious: CHU Ki v. Reg. 1965 H.X.L.R. 600. As the conviction now relates only to simple possession and also to only a smaller quantity of drugs I will make a nominal reduction, but there must still be a sentence of 15 months' imprisonment, which will of course be consecutive to any other sentence the Appellant is serving.

27th June 1974.

Representation: