Chu Fat-sun v. The Queen
Read the full judgment text of CACC 40/1980 on BabelCite. This Court of Appeal judgment was delivered on 1 February 1980.
1. There was ample evidence before the learned magistrate to justify him in finding the appellant guilty of possession of dangerous drugs under section 8(1)(a) of the Dangerous Drugs Ordinance, Cap. 134.
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CACC000040/1980
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 40 OF 1980 -----------------
----------------- Coram: Addison, J. Date of Judgment: 1 February 1980 ----------------- JUDGMENT ----------------- 1. There was ample evidence before the learned magistrate to justify him in finding the appellant guilty of possession of dangerous drugs under section 8(1)(a) of the Dangerous Drugs Ordinance, Cap. 134. 2. Two police officers stopped the appellant in the vicinity of Tzw Wan Shan Resettlement Estate and he was taken to the toilet on the ground floor of Block 45 where he was searched. The drug, the subject of the charge, was found secreted in his anus. The appellant agreed he was told of the finding of the drug but according to him he knew nothing about it. In his opinion he was framed. 3. The learned magistrate who had the benefit of seeing the witnesses did not believe the appellant's version. I cannot say he erred in finding the accused guilty. The appeal against conviction is dismissed. 4. There are two further matters. In his statement of findings the learned magistrate recites all the evidence given before him at the trial. This is not required and only leads to unnecessary work both for him and for an appellate judge, who will read the evidence, as recorded. What is looked for in the statement of findings are the facts found by the magistrate and the grounds of his decision having regard to the points in issue between the parties. The reasons for reaching those findings should be sufficiently set out otherwise it may be difficult to discern whether they are adequate enough to have impelled the magistrate to reach such findings. Again, where the law requires the magistrate should have regard to certain matters, such as corroboration or as to the dangers in accepting identification evidence, such should also be adverted to lest it be thought they have been overlooked. Argument rather than a recitation of the evidence adduced at the trial is the topic looked for. 5. Secondly the learned magistrate seems to have overlooked the provisions of section 4(4) of the Drug Addiction Treatment Centres Ordinance Cap. 244, which enacts:
6. This sub-section was enacted to facilitate the successful treatment of drug addicts. It was thought that their total recovery from addiction would be helped if they knew no conviction could come to light in the future. Otherwise the stain against their character from a conviction might adversely affect them. Obviously this enactment is full of psychological wisdom and yet provision is made for the court to enter a conviction where, in its opinion, the circumstances of the offence warrant this. The circumstances when a court might, none the less, enter a conviction are infinite. The relevant offence for which the accused may be detained in a drug addiction treatment centre may be unconnected with drugs and the magistrate or judge may feel that public safety requires his conviction be recorded. On the other hand the offence giving rise to detention may be a related drug offence, such as trafficking. In these circumstances a court might feel that the facts of the case warrants a conviction being recorded. 7. Without laying down any hard and fast rules it seems more likely a conviction would be recorded where from the age of the offender and from his previous record it is obvious that he is not going to be emotionally or psychologically disturbed at having a conviction recorded. The old lag might look at another conviction as water off a duck's back. Likewise a court may decide to record a conviction against a trafficker but it is not obliged to do so. A magistrate is not expected to put his head in a bag and ignore the community's interest in keeping its tabs on those more actively engaged in the drug trade. An earlier conviction may well be a fact worth knowing. It is left to the sensible judgment of the judge or magistrate. 8. I want to say no more than this in this appeal. Sub-section 4 of section 4 of the Drug Addiction Treatment Centres Ordinance specifically enacts no conviction shall be recorded against a person in respect of whom an order for detention is made unless the circumstances of the offence so warrant and the court so orders. Where a conviction is recorded, as in this case, the magistrate should briefly indicate why he has done so. One could envisage many circumstances when it will be proper for him to enter a conviction but when departing from the primary statutory requirement that he should not do so, he should, I think, give his reasons. The conviction in this case will stand having regard to the age of the accused and the fact that he has no fewer than 18 previous convictions of which 3 relate to dangerous drugs.
Representation: Appellant in person Mr. Cunningham, Counsel for Crown |