The Queen v. Tong Kwok Yip

HCMA000798/1985

BETWEEN:

Coram: Roberts, C.J.

Date of Judgment: 15th November, 1985.

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JUDGMENT

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1. The facts of this case lie within a very small compass. The appellant was observed by police officers near Sir Robert Black Clinic, where methadone is issued, fairly early one morning and was seen to stretch his hand through an iron gate and deposit a cigarette packet on the ground. This was seized by police officers, who were keeping him under observation, and was found to contain 16 polythene bags, each of which contained a heroin mixture.

2. A statement of facts was put to him at his trial, with which he agreed. He pleaded not guilty to the charge of possession for the purpose of unlawful trafficking but guilty to simple possession. The magistrate, according to the record, explained to him that a presumption now lay upon him to show that the drugs were not in his possession for the purpose of unlawful trafficking. This burden the defendant sought to discharge by giving evidence.

3. His explanation was that he was a familiar customer at the Sir Robert Black Clinic, and thus by implication a drug addict, and that he had bought the small packets from his usual trafficker, a man called "Sing Chai". He said he paid $300 for the bags and that he would pay another $100 in the future. He put the bags in a packet and dropped them near the metal railings and said "I intended to take the methadone and leave".

4. Apart from the agreed facts, this is the only evidence that was before the magistrate.

5. In a short statement of findings, the magistrate summarized the defence which had been put forward and ended by saying -

"The Appellant's evidence was unconvincing, it was quite clear he was trying to make up a story.

I did not accept his evidence and I was satisfied that he did not rebut the presumption and I convicted as charged. "

6. Two grounds of appeal were advanced by Mr. Pennicott. The first that the magistrate was wrong in finding that the appellant had not rebutted the presumption since this was against the weight of evidence.

7. As to this, I have to find that there is evidence on the record which would justify the magistrate's conclusion. As I indicated during the course of the hearing, it might well have not been unreasonable for another magistrate to come to another conclusion on that evidence, if he accepted the appellant as a credible witness.

8. I cannot interfere with a finding of this kind made by a magistrate who has had the advantage of seeing the witness and for this reason, the first ground of appeal must fail.

9. The second ground was that the magistrate, since the appellant was unrepresented, should have investigated the history and nature of the defendant's drug dependency in more detail. I was referred to the case of Chan Leung v. The Queen ^(l) in which Li, J. made some observations on the discretion and duty of trial judges where defendants are unrepresented.

10. Although the word "duty" is used in some passages in that judgment, I do not think that Li, J. was seeking to impose any obligation on a magistrate to ask questions to assist an accused or to ascertain the truth of the matter where he is unrepresented. As I read his judgment, he is saying that it is perfectly proper for a magistrate to do so if he wishes, not that he must do so.

11. It is suggested that a different picture might have emerged if the magistrate had seen fit to ask additional questions relating to the defendant's drug dependency and his daily consumption. This is a matter for speculation, and it is not for me to interfere on such a basis.

12. There was, in my view, abundant evidence to justify the magistrate in coming to the conclusion which he did. There can have been no doubt in his mind that this man was an addict, that he regularly attended the methadone clinic, that he regularly bought packets of white powder from his supplier. And most important of all, having seen the defendant and assessed him he didn't believe him.

13. There are no grounds on which I could properly interfere and the appeal is accordingly dismissed.

(1) [1979] H.K.L.R. 98

Representation:

Mr. I. Pennicott (D.L.A.) for Appellant

Mr. S. Leung, Ag. Asst. Crown Prosecutor, for Respondent/D.P.P.