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HCMA000062/1984
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Appeal No. 62 of 1984
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BETWEEN
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THE QUEEN |
Respondent |
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LAM IP-SING |
Appellant |
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Coram: Hon. Penlington, J. in Court
Date of Hearing: 7 March 1984
Date of Delivery of Judgment: 28 March 1984
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JUDGMENT
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Introduction
1. This is an appeal against a conviction for trafficking in dangerous drugs contrary to section 4(1)(a) of the Dangerous Drugs Ordinance, Cap. 134.
The Evidence
2. The evidence called by the Crown was that of two police constables. The first of these, PC13842 Lik Wai-ming, was that on the 7th September 1983 at 7 a.m. from inside an electric meter room of Block 17 of the Kwai Chung Estate he saw a transaction in which the appellant sold a packet of dangerous drugs to another man. The constable, having witnessed this transaction, followed the appellant and arrested him between Block 12 and Block 17. The purchaser of the drugs, who was also charged but only with simple possession, was arrested by another police constable, 20319 To Kam, as a result of receiving a radio message. There was another police constable who was present with constable Lik but he was not called to give evidence nor was a sergeant who was in charge of the operation but only in that he was in a command post in radio communication.
3. Evidence was given by the appellant himself and by his wife as well as by a newspaper vendor, a Madam Lee Sai-mui, and also by the 2nd defendant.
4. The magistrate said he accepted constable Lik as an honest and truthful witness. He did not believe the appellant and his witnesses. He convicted the appellant as charged.
5. At the conclusion of the hearing I indicated that the appeal would be allowed and that I would give my reasons which I now do.
Grounds of Appeal
6. The grounds argued, although not in the same order, were as follows:
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(1) |
That the Magistrate had not followed the guidelines set out in the case of R v Turnbull & Others(1) as regards identification. I do not need to go into those principles which are now very well known. They relate to evidence of identification where there is a fleeting glance and where there is a distinct possibility of a mistake' in identification. The circumstances here were quite different. The police constable said that he had a clear view from the meter room into the corridor of the Estate and the Magistrate himself went to the scene and was satisfied that was so. There were no obstructions. The incident took place at about 7.40 in the morning and the constable said that the lighting was extremely good. There is no reason, in my view, to doubt that was correct. The constable also said that he saw the transaction take place over a period of some twenty seconds. In cross-examination he conceded that that might be only 10 seconds but in any event that, in my view, is a lot more than a fleeting glance. I am satisfied that this was not a situation of a possible mistake in identification. Either the constable was deliberately lying when he gave evidence saying that he saw the appellant sell the drugs or he was telling the truth. In my view that is not the sort of situation envisaged in the judgment; in R v Turnbull. There is therefore, in my view, no basis for that ground of appeal. |
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(2) |
The Magistrate in his decision first of all said that he accepted the evidence given by the first police constable. He then went on to consider the evidence given by the defendant himself and the witnesses called on his behalf. Having considered that evidence he said: "I reject the defence witnesses. I am satisfied D1 was in Block 17 that morning. I am satisfied that he sold the drugs to D2 and I find him guilty accordingly."
Counsel for the appellant relies on the decision in Khou Kwok-wai v The Queen(2). She suggests that the Magistrate has fallen into the error of comparing the evidence called by the prosecution with that called by the defence and preferring that called by the Crown. In Khou Kwok-wai Leonard J. referred to the earlier decisions of TSUI Sheung & Others v The Queen(3); LAU Leung v The Queen(4) and PAU Wing-shing v The Queen(5). These authorities quite clearly establish that the Magistrate or other judicial officer sitting alone should look at the evidence in its entirety and come to a decision based on that evidence bearing in mind the burden of proof which lies on the prosecution. He should not compare the prosecution evidence with that given for the defence and compare the two.
In this case although the Magistrate has said, before apparently considering the defence evidence, that he accepted that given by the first police constable, who he found is a reliable witness, I am satisfied from his findings taken as a whole that he did consider this matter quite properly and although perhaps the manner in which the-judgment is worded is unfortunate. I do not think there is any magic formula in setting out findings and provided the Magistrate has considered the evidence called for both the prosecution and the defence and has satisfied himself of the guilt of the accused beyond reasonable doubt based on all that evidence, the conviction cannot be said to be unsafe or unsatisfactory. While there is some merit in this ground I would not allow the appeal on that alone.
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(3) |
The Magistrate should not have accepted the evidence of constable Lik as it was in conflict with that of constable To. In fact the only part of his evidence which is contradictory is that constable Lik said he radioed his Sgt. when he had seen the transaction take place and the purchaser of the drugs was arrested by the Sgt. Constable To said he received the radio message and he arrested the second defendant, which seems correct. I did not regard such a discrepancy as fatal and it could well be that the radio message was received by both the Sgt. and constable To. Equally constable Lik could easily be genuinely mistaken as to who arrested the second defendant. Constable Lik was not present at the time.
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(4) |
That the Magistrate has dismissed the evidence given by the appellant and his witnesses, and in particular the evidence given by two witnesses who may be said to be independent; that is, the 2nd defendant, the purchaser of the drugs and in particular the newspaper vendor without giving his reasons for doing so and in a pre-emptory manner. The Magistrate has said he rejected the evidence of the 2nd defendant because he thought he was attempting to protect his supplier. So far as the newspaper vendor is concerned however, he gives no reasons for rejecting her evidence which, if it was true, must have meant that the appellant was not selling drugs in Block 17 at the time the police constable said he was. It may well be that the newspaper vendor's evidence was incorrect but I think the appellant was entitled to know why the Magistrate rejected that evidence. The Magistrate has simply said in respect of her evidence "I reject the defence witnesses." I think that when an apparently independent witness gives evidence favourable to a defendant more is required than that. I do not think elaborate reasons are required but there should be some indication of the reasons for dismissing that evidence. |
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7. Coupled with the point raised in ground 2 above I think this makes the conviction unsatisfactory and the appeal will be allowed.
8. I went on to consider the question of whether I should order a re-trial. Counsel for the appellant was not able to advance any clear reason why I should not do so and I considered that this is a suitable case to be retried before another Magistrate. I so ordered.
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(R.G. Penlington)
Judge of the High Court |
Representation:
Mrs. Lucille Jackson-Lipkin (David Tsang & Co.) for the Appellant
Mr. Turnbull, Crown Counsel, for the Respondent
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Appeal No. 62 of 1984
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BETWEEN
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THE QUEEN |
Respondent |
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AND |
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LAM IP-SING |
Appellant |
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Coram: Hon. Penlington, J. in Court
Date of Hearing: 7 March 1984
Date of Delivery of Judgment: 28 March 1984
ADDENDUM
9. Please note that the above-mentioned judgment was delivered on 28th March, 1984.
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(K.W. CHUNG)
Clerk to Hon. Penlington, J. |
(1) (1976) 3 A.E.R. 549
(2) Cr. App. No. 91 of 1977
(3) (1968) HKLR 164
(4) Cr. App. No. 699 of 1968
(5) (1970) HKLR 47
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