The Queen v. So Tak Hung

HCMA001232/1990

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1232 of 1990

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Dates of Hearing: 10 & 12 April, 1991

Date of Delivery of Judgment: 12 April 1991

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JUDGMENT

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1. The appellant was found guilty aster trial in the Magistrates Court of the offence of possession of dangerous drugs for the purpose of unlawful trafficking, and sentenced to imprisonment for 2 years.

2. In his appeal against the conviction, the appellant has complained that about certain inconsistencies in the evidence of the principal prosecution witness. Although from the record it appeared that there had been a previous trial, the reason for the second trial was, understandably, not apparent on the record.

3. The appellant told me that the reason for the second trial was that he had been previously convicted that that conviction had been quashed on appeal and a retrial ordered. He said that there were a number of serious inconsistencies between the evidence given by toe principal prosecution witness at the first trial and the evidence he gave at the second trial.

4. I have examined the file in relation to toe appeal on his first conviction, and I have discovered that the reason for allowing that appeal had nothing to do with the evidence of the principal prosecution witness at the second trial the witness whose evidence was shown to be inconsistent in too respects with evidence given at the 1st trial. However, at his second trial the appellant's counsel had available to him the transcript of the first trial, with that transcript his counsel was axle to point out to the witness that at the first trial the witness had made no mention of the appellant s having made an inculpatory statement at the time when the appellant was searched. But at the second trial that witness said that when he found nine packets in the possession of toe appellant that the appellant had said: "An Sir give me a chance. Don't arrest we for possessing this amount of drugs Just arrest me for a small quantity"

5. The witness said at the second trial that he could not re remember if he mentioned the appellant's reaction to the finding of the packets. He considered the appellant's answers to be very important evidence contended that, at the first trial, he had related the whole incident to the court, and. agreed that he should have mentioned what the appellant allegedly said.

6. At the second trial, he said that when he was Searching appellant in the toilet of the premises where the appellant was arrested, he merely unzipped the appellant's trousers and examined his underpants. He said that he did not take off any of the appellant s clothes but he agreed that at the previous hearing he had said that he had taken off the appellant's clothes. His explanation for that discrepancy was that the words "I took them off", were mistakenly used by him. The learned magistrate in his Statement of Findings in respect of this current conviction does not refer to these discrepancies, but he did refer to then in the judgment which he delivered at the conclusion of the trial.

7. In his judgmend, the learned magistrate referred to the witness's evidence about the appellant s alleged remarks just prior to his arrest and to the fact that no mention of this was made at the first trial. He goes on to refer to the witness evidence that he could not remember whether he mentioned the appellant's reaction and thenadded: "That is the only explanation At can give." With regard to the discrepancy as to whether the witness did or aid not remove the appellant's clothing, the learned magistrate said this: "There was some discrepancy in the trials about who took the Appellant's clothes off. "

8. Those matters having been drawn to the attention of the court, and having been relied upon as challenges to the Credibility of that principal witness, it was incumbent on the learned magistrate to indicate now he was able to accept the witness's evidence.

9. A conviction recorded without such an explanation is in my view unsatisfactory, I, therefore, allow the appeal and quash the conviction.

Representation:

Mr. Forlin C.C. for Crown

Appellant: So Tak Hung in person