Yuk Mau-kam v. The Queen

CACC000409/1977

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 409 OF 1977

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Coram: The Hon. Mr. Justice Yang.

Date of Judgment: 19th May, 1977.

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JUDGMENT

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1. The appellant was charged with one single charge of possession of dangerous drugs for the purpose of unlawful trafficking. The evidence adduced by the prosecution against the appellant at the trial was that a quantity of heroin was found in one place, and another quantity of heroin was found in another, quite different, place. The prosecution evidence concerning the appellant's possession of those two quantities of heroin in those two different places differed. The learned trial magistrate was unable to separate the single charge into two charges because the two quantities of heroin had been lumped together for the purpose of chemical analysis, and there was little likelihood of the component parts being satisfactorily accounted for on the evidence before the trial magistrate.

2. A submission of no case to answer was made on behalf of the appellant, but the learned magistrate did not rule on it. Instead he purported to act under section 104 of the Magistrate's Ordinance and ordered a new trial before another magistrate.

3. On behalf of the appellant Mr. Gilman argued that the magistrate did not have power to order a new trial, because such an order can only be made under section 104 upon a review of the magistrate's decision. Here there was no decision and there was therefore nothing to review. It is further submitted that the learned magistrate should have ruled on the submission of no case, but that it would be unfair to the appellant for this Court to remit the case back to the magistrate for him to rule on the submission because the magistrate had, by making the order for a new trial, already made his views known.

4. Mr. Stevenson, on behalf of the prosecution, argues inter alia that the proper course for the appellant would be to ask for a mandamus.

5. In my judgment the learned magistrate in his desire to be absolutely fair to the appellant and acting with the sole object of doing justice to all parties concerned, made an order which he had no power to make. Section 104 clearly presupposes a prior decision from which a review flows. Here he had not made any decision.

6. I accept Mr. Gilman's argument that a ruling on the submission of no case should have been made in this case. I do not however accept that the appellant will be prejudiced by a remission of the case back to the learned magistrate with an order that he should make a ruling on the submission of no case. I therefore allow the appeal and make that order. The case is remitted back to the trial magistrate for him to rule on the submission of no case.

Representation:

Mr. Gilman (John Ip & Cp.) for Appellant.

Mr. Stevenson, C.C. for Respondent.