The Queen v. Leung Kwong Cheung

HCMA001139/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1139 of 1990

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BETWEEN

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Coram: The Hon. Mr. Justice Kaplan in Court

Date of Hearing: 14 November 1990

Date of Judgment: 14 November 1990

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JUDGMENT

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1. This is an appeal against conviction and sentence. The sentence part of the appeal has already been abandoned so it is just an appeal against the conviction on the 20th July 1990 for an offence of possession of dangerous drugs for unlawful trafficking.

2. The principal ground of the appeal is this. The Defendant and another person, who has since absconded, were arrested as they came out of a flat and on the Appellant was found some dangerous drugs. He made a statement to the police in which he said he had just been handed this packet by the other Defendant and did not know its contents.

3. The matter came before the magistrate and a number of matters were agreed. Firstly, a brief record was agreed and this appears as exhibit P1 and it appears at page 27. What was agreed was that at 22.15 hours on 9th April 1990, two police officers together with others were keeping watch on a flat and at 22.46, the Appellant and the other Defendant together with a female were seen walking out of the flat. They were intercepted. They were searched and some drugs were found on the Appellant. The Appellant made a cautioned statement which was exculpatory because he claimed that the drugs had been given to him by the other Defendant prior to his arrest and he had no idea of its contents.

4. I do not take this statement of agreed facts to be an admission by the Crown that in fact they were agreeing that he had no idea of the contents or that he had just been given these drugs shortly before the arrest. Also agreed was the Government Chemist certificate and the cautioned statement. Now as far as the cautioned statement is concerned, it was agreed by both parties that it was admissible in the sense that it was voluntary. There is no question of the Crown agreeing its contents.

5. However, it is clear that when the Appellant gave evidence in accordance with his statement, he was saying that he had just been handed the drugs and did not know what was in the packet.

6. It was a very simple matter for the magistrate to decide. He had to decide whether the Appellant knew what they were and whether he had them for the purpose of unlawful trafficking and the presumptions in the Dangerous Drugs Ordinance clearly applied and the issue was whether or not this Appellant had rebutted the presumptions on the balance of probabilities.

7. The Appellant, as I say, gave evidence and he was cross-examined and it is fair to say (and 1 make no criticism of anybody about this) that he was cross-examined on the basis that he had in fact been given the packet by the other Defendant. One finds, for instance, at page 16: Q. "When he gave you the packet, what did you think was in it" and later on he was asked "had you ever seen it before?" That was just after he had said "I saw in his hand just before he gave it to me" and a little further down towards the bottom page 17 "before he handed the envelope to you where in the flat he come from" and the answer was his bedroom. So several questions have been put to him on the basis that in fact he had just been handed that envelope.

8. It is unfortunate and again I am not critical because it is always easy to see these things with hindsight but at no stage in the cross-examination, did anyone put to this Appellant that he was not telling the truth in relation to his evidence that he had just been handed the packet before the police arrested him.

9. Had this been made clear to him, the magistrate would have had the benefit of hearing what he had to say about it and would have heard his denial of the allegation that he was lying.

10. Once that point became an issue in the case, it would also be open to the Appellant to call the girl friend to say that this is exactly what happened. I do not know what the magistrate would have made of that evidence. The fact is, it was not called because it was not thought to be necessary. And then one turns to what the magistrate said and that is at page 21. This is his findings and the relevant paragraph is paragraph 4. What he says is :

"I consider the Appellant's evidence that he had been handed this envelope by Tam and was ignorant of its contents to be untrue."

11. What the magistrate found was that he did not believe the Appellant when he said he did not know what the contents were. In normal circumstances, he would nave been perfectly entitled to do that, But he dip go further, and I think I have to construe it this way.

12. He made a finding that he did not believe the Appellant's evidence when he said he had been handed the envelope by Tam. He found against the Appellant on this point. Although it does not appear to me from the cross-examination that this was a live issue, as I say, had it been a live issue the Appellant could have dealt with it in his evidence. He may not have been believed and he may have been able to call a witness who may or may not have been believed and it may be the result would have been exactly the same. But what concerns me is that this Appellant who received a sentence of 2 1/2 years' imprisonment is suffering under a sense of grievance that his whole case had been conducted on the basis that he had just been handed this envelope. However, the magistrate disbelieved him although it was never put to him and he had no opportunity of calling evidence to support his version.

13. This is the matter which has caused me some concern and I have to make up my mind whether it is sufficiently serious to lead me to come to the conclusion that this conviction is unsafe and unsatisfactory. It seems to me unfortunate that the case took this particular course and if the magistrate had expressed himself slightly differently the matter might have been satisfactory. He found the Appellant's story inherently implausible and he was not impressed by the Appellant but nevertheless one has the point that if the Appellant had just been handed the packet, this was slightly more supportive of his evidence of ignorance of its contents than if he had the packet for some time before and the magistrate does not appear to have applied this mind to that distinction.

14. Having given this matter very careful consideration and having heard the submissions by both counsel who put their cases extremely briefly but to the point, I think I am left with a doubt about this matter and I do think that unfortunately this conviction is unsafe and unsatisfactory for the reason which I have said and in those circumstances I propose to allow the appeal. I order that the Appellant be retried on this charge by a different magistrate.

Representation:

Mr. Alain sham, Sr. Crown Counsel for Crown

Mr. K.M. Chong instructed by Ip & willis for Appellant