The Queen v. Chiu Mo Kiu

HCMA000149/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 149 OF 1991

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date of Hearing: 26 July 1991

Date of Delivery of Judgment: 26 July 1991

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J U D G M E N T

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1. The appellant was charges with the offence of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to S.7 (1) of the Dangerous Drugs Ordinance.

2. He pleaded not guilty but was convicted after trial. The offence was alleged to have been committed on the 10th October1990. He first appeared before the court on the next day, and again appeared on the 25th October on which occasion he was represented by a very experienced counsel under the Duty Lawyer Scheme. On that day, he pleaded not guilty, his trial was set down for hearing on the 17th December 1990, and he was allowed bail pending trial.

3. When the case came on for hearing on the 17th December, he was again represented, but by a different counsel instructed by a firm of Solicitors, On this occasion his counsel sought an adjournment on the basis that the appellant had instructed "private lawyers" the day before. His counsel told the court that the appellant had a witness who was out of Hong Kong, and that he was with the appellant "at the time".

4. The learned Magistrate, however, refused the application for adjournment on the basis that the appellant had had more than two months within which to prepare his defence. He did, however, allow the appellant's then counsel time to take instructions from the appellant, and the case was not called on until later in the morning.

5. When the case was called on again, counsel for the appellant repeated the application for an adjournment saying that the appellant's defence was a total denial, and that she would have to withdraw if an adjournment was not granted. In an exchange between the Bench and the appellant's counsel it emerged that the appellant had declined further Duty Lawyer's assistance only that early morning. But she did indicate that he had been giving instructions to the Duty Lawyer aparted a few days before, namely, the 27th of November 1990. The instructions given by the appellant to his counsel were that the witness had gone to China on business.

6. The learned Magistrate stood the matter down further, so that the appellant could have further consultations with his Counsel, and subsequently she informed the Magistrate that she could not continue to represent the appellant and withdrew. The case then proceeded with the appellant unrepresented. Throughout the trial the appellant adopted an attitude which led the Magistrate to conclude that he was being obstructive. The Magistrate did nevertheless, patiently explain his right to cross-examine witnesses, what was involved in cross-examination, and what the practical result of failure to cross-examine and challenge witnesses meant.

7. The prosecution relied on a confessional statement made by the appellant and before that was led in evidence the Magistrate explained to the appellant the law regarding the admissibility of such statements, and again pointed out to him that he had the opportunity to challenge that statement and to make a defence, and pointed out the consequences of a failure to, make a defence. The appellant indicated that he understood the explanation and said that he did not intend any contempt but still made no attempt to put forward any defence. At one stage ha even said to the Magistrate "no defence".

8. At the conclusion of the prosecution case, the Magistrate's record shows that he explained the defendant's right to him, and especially explained the presumption of possession for unlawful trafficking, and the defendant in reply to that said "nothing to say"

9. The uncontradicted and unchallenged evidence put before the Magistrate clearly established that the appellant was in possession of the drugs particularised in the charge, and the quantity of those drugs was such that, in the absence of evidence showing that the purpose was other than unlawful trafficking, the Magistrate was obliged by law to find him guilty of possession for the purpose of unlawful trafficking and that was what he did.

10. In this appeal against conviction, the appellant relies on three principal grounds, which have been drafted and put before me with considerable skill by Mr. Joseph Tse of counsel.

11. The first ground is that the appellant being unrepresented at the trial, the learned Magistrate failed to give him sufficient assistance in putting forward his defence, and in support of that ground, Mr. Tse has outlined 7 particulars of what he claims to have been failures on the part of the learned Magistrate.

12. I do not wish to appear belittle Mr. Tse's, considerable efforts on behalf of the appellant, but the plain fact of the matter, as disclosed, by the record, is that the Magistrate went out of his way to help this appellant. No possible criticism could be made and none was made by Mr. Tse of the Magistrate's exercise of his discretion not to grant the adjournment. But the learned Magistrate came to the conclusion that the appellant's attitude was obstructive, and was acting petulantly because of the refusal to grant him an adjournment. It is quite clear from remarks made by the Magistrate that an adjournment would have been pointless, that any witness that the appellant may have called could hardly have spoken to the matters which it alleged he could have spoken to. It was claimed that the witness was with the appellant all day, but as the Magistrate pointed out it is difficult to see how such a witness could say that the appellant was never in possession. It is, of course, possible that the appellant could have had a witness able to give evidence of the incident when the appellant was arrested, but as the case proceeded the appellant made no effort whatsoever to put any such defence before the court.

13. The principal matter of concern as was recognised by Mr. Reading on behalf of the Respondent, was the Magistrate's ruling on the admissibility of the statement made by the defendant to the police. As I mentioned earlier, the Magistrate explained to the appellant the law regarding the admissibility of such evidence, and evidence was led by the prosecution establishing the voluntary nature of that admission. Nevertheless, the record shows that the Magistrate admitted that evidence immediately voluntariness was proved without giving the appellant the opportunity to cross-examine on it. However, the record shows that immediately the notation was made about the document becoming an exhibit the Magistrate explained to the defendant his rights to cross-examine.  The only valid criticism that can be made is that the Magistrate at that stage should have marked the document as a provisional exhibit.

14. Mr. Tse referred me to two cases, one a decision by the Full Court in The Queen v. Yeung Cheung [1959] HKLR 338, and the other a single judge decision in Ngo Ngan ting [1976] HKLR 143. The latter case was an application of the principle enunciated in the former, the effect of both being that if it appears from the record that the Magistrate might not have informed a defendant of his right to call witnesses the trial has the appearance of unfairness rendering a resulting conviction unsatisfactory.

15. In this case, however, it is quite clear that the Magistrate explained all the defendant's rights to him. That the defendant was aware of his rights is call witnesses is clear from the application made even before the trial began, namely, to have an adjournment for the purpose of calling a witness. I find no substance in any of the seven complaints and no merit in that ground of appeal.

16. The second ground is that the learned Magistrate erred in failing to consider that the presumption of unlawful trafficking could have been rebutted even though the appellant did not give evidence. It is true that the Magistrate does not say that he looked at the prosecution evidence to see whether the presumption had been rebutted but when during argument I asked Mr. Tse if he could point out any admissible evidence which may have been considered for the purpose of determining whether the presumption had been rebutted, he could only point to the cautioned statement wherein the defendant admitted possession and went on to say he had the drugs "for his own consumption".

17. To my mind, that is not evidence capable of being considered for the purpose of rebutting a presumption. It is evidence which is before the court as part of the admission by the defendant, but it is limited to that. It is not evidence capable of rebutting a presumption.

18. A presumption can only be rebutted by credible evidence admissible for that purpose. There was no evidence of that type so the Magistrate was bound to find on the evidence that the presumption had not been rebutted. I, therefore, find nothing of substance in ground two.

19. Ground three is the usual rolled up ground that in the circumstances, the conviction was unsafe and unsatisfactory but as I find nothing in the circumstances relied on there is no basis for holding the conviction is unsafe and unsatisfactory.

20. Accordingly, the appeal against conviction is dismissed.

Representation:

Mr. J. Reading, S.A.C.P. for Crown.

Mr. Joseph W.Y. Tse(David K.W. Tsang & Co.) for Appellant: CHIU Mo-kiu.