Wong Hon Leung and Another v. The Queen

CACC000321/1976

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Coram: Pickering, J.A.

Date of Judgment: 13th May 1976.

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JUDGMENT

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1. The appellants were convicted and sentenced on 23rd January 1976. Their appeals were set down before me on 13th May 1976. In the meantime an innocent man had been in jail for nearly four months. This is an aspect of the case to which I will return.

2. The appellants were charged with three other defendants with possession of dangerous drugs for the purpose of unlawful trafficking. The evidence was that a police party went to the premises 19G Reclamation Street, 7th floor, Kowloon, at about 3 a.m. on 14th November 1975 and waited outside those premises for some 45 minutes until somebody, apparently a guest, knocked upon the door which was opened by the second appellant. The police went in and conducted a search. Both appellants were found in the sitting-room near the entrance to the premises and, although the evidence is not entirely clear, it appears that the first appellant, who was on a chair or a sofa, was sleeping. Dangerous drugs of a quantity sufficient to attract the presumption of possession for unlawful trafficking were found either on the person of the first appellant or on the chair or sofa which he occupied. Other drugs were found in other rooms but none were found on the person of the second appellant or in anything which belonged to him; he did not have the keys to the premises nor was his relationship to any of his co-accused ever established.

3. The only connection of the second appellant with this case is that he was on the premises at the time the drugs were found there and that he opened the door when somebody knocked upon it. It cannot be said from the fact of his mere presence in the premises and his action in opening the door that he was in even simple possession of any of the drugs there found and his conviction upon the charge of possession for the purpose of unlawful trafficking is set aside.

4. The finding of possession in the case of the first appellant is not one with which I am justified in interfering. Unfortunately however, although in his Statement of Findings, the learned magistrate says that he directed his mind to the presumption contained in s.46 of the Dangerous Drugs Ordinance concerning possession of dangerous drugs for the purpose of unlawful trafficking therein, he failed to explain that presumption to the first appellant or to give him any opportunity of rebutting it. In those circumstances the conviction for possession for the purpose of unlawful trafficking cannot stand and for that conviction I substitute a conviction for simple possession and, setting aside the sentence of two years' imprisonment upon the original charge I substitute a sentence of one year's imprisonment which is to begin from the date of the commencement of the original sentence.

5. An unrelated ground of appeal against conviction was that these unrepresented appellants were not informed by the learned magistrate of their right to cross-examine their fellow defendants. This was an undoubted irregularity (see Chan Biu v. Reg.⁽¹⁾) but I have already allowed the appeal of the second appellant and I am satisfied that the evidence as to simple possession was overwhelming in the case of the first appellant and that he was not prejudiced by the irregularity.

6. I referred at the beginning of this judgment to the length of time during which the second appellant, although innocent, has been in prison. The chronology is as follows:-

7. It will thus be seen that there was a delay of almost two months within the magistracy before the record was sent to the Supreme Court. Of that period five weeks elapsed between the filing of Notice of Appeal and the signing by the magistrate of his Statement of Findings and between that latter date and the date upon which the record was sent to the Supreme Court almost three weeks elapsed. Almost five weeks passed between the record being sent to the Director of Legal Aid for consideration of the granting of a Legal Aid Certificate and the actual grant thereof.

8. Having been a magistrate myself in Hong Kong I am not unaware of the pressures upon magistrates or of that upon the clerical staff. The delays in the magistracy in this instance, however, were inordinate. When a Notice of Appeal is filed it must be accepted that the appellant could be right and the magistrate wrong and that if the appellant is right as to the incorrectness of his conviction it is desirable that his appeal be heard promptly and that he be released as soon as possible. I am aware that many magistrates and chief clerks are conscious of this and I do not wish to sweep a scythe of criticism through areas where criticism is unjustified but I trust that we will not again experience delay of this order either in the signing of the Statement of Findings or in the preparation of a 26-page record some of which consists of mere printed forms or photostats.

9. Being anxious, before making these observations, to ensure that the learned magistrate had not been ill at the relevant time I called for enquiries to be made. It is fair to observe that between 7th February and 14th March he was away from his own magistracy and working either in a Labour Tribunal or another magistracy. It remaine the case, however, that wherever a judge or may be, unless he be sick or out of the Colony, it is his responsibility to ensure that Statements of Findings are prepared and signed with reasonable promptitude and if this is not done it is the duty of the Deputy Registrar or Clerk of Court to nudge his elbow.

10. I am less competent to discuss the delay which arose within the Legal Aid Department but I would draw the Director's attention to the present case and express the hope that in future certificates in relatively simple cases can be granted or refused in a lesser period than the approximately five weeks which transpired in this instance.

11. I direct that the Clerk of Court bring a copy of this judgment to the personal attention of the Chief Clerk in each magistracy and to that of the Deputy Registrars in the District Courts. I would ask the Registrar in the Supreme Court to undertake a similar duty in regard to the Director of Legal Aid.

Representation:

Mumford (D.L.A.) for 1st & 2nd appellants.

Bellanto, C.C., for respondent.

(1) (1965) H.K.L.R. 1133.