The Queen v. Lam Chi Wai

CACC000515/1985

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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BETWEEN

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Coram: Hon. Roberts, C.J., Hon. Yang, J.A. & Hon. Penlington, J.

Date of hearing: 1st May 1986

Date of delivery of judgment: 1st May 1986

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JUDGMENT

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Penlington, J.

1. This is an appeal against conviction, the main ground being that when the appellant came on for trial before Judge Scriven in the District Court, an application by him for an adjournment of the trial to enable him to obtain legal representation was refused.

2. There are subsidiary grounds of appeal, that the judge failed to adequately explain to the appellant his right to cross-examine witnesses, and the effect of the presumption imposed by Section 46 of the Dangerous Drugs Ordinance, Cap. 134 and a refusal to allow an adjournment after the close of the prosecution's case so as to permit the appellant to locate and call his witnesses. It is also alleged that the judge failed to give all proper assistance to the appellant in the conduct of his defence, he being unrepresented.

3. The matter first came before the District Court on the 16th September 1985 when the appellant, who was unrepresented, was asked if he wanted legal aid but said that he would instruct his own solicitor. He denied the offence, which was one of possession of dangerous drugs for the purpose of unlawful trafficking,and he was remanded for trial to the 13th of November 1985. His bail was extended.

4. On that day he was again unrepresented and said that he wished to have an adjournment so as to engage a private lawyer. He said he had intended to do so but had been arrested again in the interval between his first appearance and had only been bailed out some four days previously. It would, however, seem clear that he was in custody only for a short time and Mr. Graham who appears for the appellant does not argue that the appellant did not have an adequate opportunity to instruct a solicitor if he so wished and if he had the means to do so.

5. The trial judge decided that the appellant had had ample time in which to consult a solicitor and engage counsel and he refused his application for an adjournment. The trial then proceeded.

6. The record of proceedings sets out that the judge explained to the appellant the effect of the presumption arising under section 46 of the Dangerous Drugus Ordinance and when the appellant said "I am not quite clear", the charge was read out again and the presumption again explained. The defendant said he understood the presumption but repeated his request for an adjournment. He again said that he had been arrested on the 23rd October 1985 end when it was pointed out to him that he had had five weeks before then to obtain legal assistance, he said he had to go to work and he was too busy.

7. Evidence was called by the Crown which consisted of two police constables who said that on stopping the appellant in Yue Man Square, he was found to have some 22 packages containing dangerous drugs. The constables were cross-examined to some extent by the Court but not substantially by the appellant.

8. At the close of the Crown's case, the appellant was informed that the presumption could only be rebutted by defects in the prosecution evidence or by the defendant giving evidence himself on oath, and he was invited to do so. However, he said only that he wished to engage a lawyer. He elected to remain silent himself and when he was asked if he had witnesses, he said he did but he would have to look for them. He said he had notified them but did not think the hearing would go on that day. The trial judge however, said he was not prepared to grant an adjournment, convicted the appellant and remanded him in custody for a social welfare report until the 27th of November. On that day, the appellant was represented by a solicitor, Mr. Taylor, who said that he had received instructions only the previous day.

9. Mr. Graham for the appellant says that where an unrepresented defendant wishes an adjournment to obtain legal advice, it should be granted, particularly in a case such as this, where the only prosecution witnesses were police constables and there was no particular urgency in the hearing of the trial. He concedes that this is a matter of discretion but argued that the trial judge has exercised it wrongly.

10. He also submits that there was no statement in the record that the appellant was asked if he wished to call witnesses. This is undoubtedly a requirement as laid down in Ngo Ngan-ting v. R Crim. App. 1065 of 1975, but the record indicates that the appellant was well aware of his right to call witnesses. It was up to him to have them present on the day that the trial was scheduled to take place.

11. As to an explanation of the effect of the presumption in Section 46 of the Dangerous Drugs Ordinance, what is required is laid down in Chan Leung v. R. Crim. App. 1205 of 1978. We are satisfied that the requirements as laid down in that case had been followed and that the appellant was well aware of the effect of the legal presumption. Being so aware, he elected to remain silent.

12. Mr. Graham also relies on R. v. Yeung Kin-man Crim. App. 337 of 1985 where the Court did order a re-trial. However that was done because the solicitors who had been acting for the appellant had virtually abandoned him because of his inability to find their fees and he had not been afforded an adequate opportunity to consult the Director of Legal Aid.  In the present case, the applicant was at the very beginning asked if he wished to apply for Legal Aid and he elected not to do so.

13. This appears to be yet again a case where, for reasons best known to himself and his family, the appellant has decided to seek private legal representation rather than apply for legal aid.

14. The only matter which has caused us any concern, is the fact that one of the police constables, in giving evidence, referred to the appellant on some four occasions as "the target". This is wrong as it indicates that the police suspected the appellant of being involved in drug dealing. If the trial had taken place before a jury, it may well be that we would have considered it necessary to interfere but as the trial was before a District Judge, we are quite satisfied he would have totally ignored any such implication.

15. The appellant had ample time to obtain legal assistance either through private solicitors or the Director of Legal Aid. He neglected to do so and no adequate reason for that neglect was given to the trial judge. The judge was quite correct in deciding to proceed with the trial and we see nothing during the course of that trial which in any way resulted in injustice to the appellant. The appeal will be dismissed.

Representation:

Mr. Peter Graham (D.L.A.) for the appellant

Mr. G.J.X. McCoy, Senior Crown Counsel, for Respondent/Crown Prosecutor