Chan Wai Shun v. The Queen

CACC000255/1978

Coram: Trainor, J.

Date of Judgment: 3rd May,1978.

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JUDGMENT

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1. On the 14th December, 1977 Chan Wai-shun a Chinese male of 23 years of age was convicted of being in possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to 15 months' imprisonment. He now appeals against his conviction.

2. The first ground argued by Mr. Sanguinetti who appeared for the appellant was that the learned magistrate permitted evidence that was properly inadmissible to be adduced. The evidence to which Mr. Sanguinetti took objection was given by the first and second police witnesses. The first police witness said:

"At 3.30 p.m. on the 2nd December 1977 I was with D.C. 12890 at Block 11, 9th floor, Ngau Tau Kok Lower Estate. We had information about drug offences. We saw the defendant walk up the stairs of the ground floor. His appearance answered the description supplied by our informant."

The evidence of the second witness, D.C. 12890 to which Mr. Sanguinetti took exception was as follows:

"At 3.30 p.m. on the 2nd December 1977 I was on 9th floor, Block 11, Ngau Tau Kok Lower Estate in the corridor. I had received information that someone was trafficking in dangerous drugs there."

3. It was Mr. Sanguinetti's contention that any information received about the appellant or about drug offences being committed at that place or with regard to the appearance of the person who was supposed to be committing the offences was hearsay and, therefore, irrelevant and inadmissible. He argued that that inadmissible evidence was highly prejudicial to the appellant and must have exercised considerable influence on the mind of the learned magistrate in reaching his conclusion of guilt.

4. By reason of the conclusion that I have come to in this case I do not intend to dwell on the argument of Mr. Sanguinetti on that point and the only observation I would make is that having regard to all the circumstances in the case I would not have been prepared to accept this as a ground for allowing the appeal. However, I would like to make this general observation. I think it is to be deplored that the evidence of police witnesses should be prefaced by remarks as "a result of the information received", or such remarks as were made in this case. Almost invariably such observations are succeeded by a description of something that took place which led to the arrest of the accused. Such observations, in my opinion, inevitably suggest that the police officer or officers know something about the accused which is not going to be revealed to the court. They are, perhaps, excusable when the court is composed of the magistrate alone and he will probably exclude them from his mind when he is considering his ultimate decision. Nevertheless, there is always the possibility that, even sub-consciously, they may influence him. It is much more damaging if the remark is made in the presence of a jury.

5. By reason of my decision the only grounds argued by Mr. Sanguinetti that I propose to consider are: that the conviction was reached and founded upon wrong and false premises; and generally that the conviction was unsafe and unsatisfactory.

6. Perhaps the most telling argument of Mr. Sanguinetti arose out of an observation made by the learned magistrate in his statement of findings. As to why he reached the conclusion he did he said in paragraph 16:

"Having heard the evidence and witnessed the demeanours of the witnesses I had no hesitation in believing the police officers. I did not believe the appellant or his witnesses. Furthermore it was obvious that the appellant had a very cogent reason for being untruthful."

It was that last sentence to which Mr. Sanguinetti took particular exception. His argument was, in effect, that the word "furthermore" could only mean "in addition", and if that were so the learned magistrate thereby conveyed that he took into consideration that the appellant had a very cogent reason for being untruthful. Mr. Sanguinetti pointed out that every accused has a very cogent reason for being untruthful, but it would be wrong if a magistrate were to consider that as a reason for disbelieving him and finding him guilty. There was however another interpretation that could be put on the observation of the learned magistrate. The parents of the appellant live in America and it is the hope of the appellant to join them there. To do so he has already applied to the Consul General of the United States for a visa to enable him to enter the United States. That was disclosed by the defendant in his evidence and was referred to by the learned trial magistrate in his statement of findings. Mr. Sanguinetti suggested that the offending sentence in paragraph 16 of the statement might well refer to the risk of being refused admission to the United States as being what the magistrate had in his mind when he referred to the cogent reason for being untruthful. Whatever the reason Mr. Sanguinetti argued it would appear to be obvious from the use of the word "furthermore" that the learned magistrate had one or other or possibly both of those reasons for disbelieving the appellant in his mind.

7. Mr. Reid who appeared for the Crown argued that the offending sentence was not capable of the interpretation or suggestion made by Mr. Sanguinetti. He argued that the magistrate had expressed his conclusion when he made that observation. He said it was merely a gratuitous addendum to what he had already said and in no way indicated that it was something that entered into his calculations when he arrived at his conclusion.

8. What Mr. Reid said may well be true. It may well be that the magistrate wrote that observation to round off a paragraph. To say the least of it, however, the sentence is unfortunate and reading the paragraph as a whole it cannot be discarded. It must be assumed that the magistrate when he wrote it, particularly as the document was written approximately six weeks after his judgment, must have intended to convey something by it. If one takes the possible intention to be that he had, in addition to his other reasons, considered the fact that the accused was facing a possible conviction, or a possible conviction that would prevent him from going to America, as a ground for arriving at his conclusion then indeed it was an improper ground for arriving at any such conclusion.

9. I am unable to say that the sentence has not the implication that Mr. Sanguinetti would attach to it, and consider that if Mr. Sanguinetti's implication might be correct then this conviction cannot stand.

10. In the circumstances I consider the conviction unsafe and unsatisfactory and on that ground I would allow the appeal. I do not consider it is necessary to make any reference to the other grounds argued by Mr. Sanguinetti. I quash the conviction and order the accused to be discharged.

Representation:

Mr. Sanguinetti (H.H. Lau & Co.) for the appellant.

Mr. Reid, c.c. for Crown.