Ma Man Choy v. The Queen

CACC000434/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 434 OF 1980

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Coram: Penlington, J.

Date of Judgment: 22nd July, 1980

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JUDGMENT

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1. The appellant appeals against conviction of an charge brought under section 19 of the Prisons Ordinance, Cap. 234. The charge is worded as follows:

"Charge - Introduction of unauthorised articles into Prison. Particulars of offence - Ma Man-choy, you are charged that on the 26th day of February 1980 at the mens toilet at the pier at Hei Ling Chau Drug Addiction Treatment Centre, in this Colony, you did deposit an unauthorised article, namely one packet of Malboro cigarettes without authorisation from the Commissioner of Prisons."

2. It is immediately apparent that there is a fundamental difference between the charge and the particulars. The charge refers to introducing unauthorised articles into a prison, the particulars to the depositing of unauthorised articles in a toilet.

3. However all the Crown's evidence and the one point on which the trial revolved was whether the cigareetes were deposited in the toilet or were they dropped there accidentally. There was no evidence on either side of the introduction into the Prison.

4. With respect the depositing in the toilet seems to me to be irrelevant to the charge which, as the learned magistrate says in the first sentence of his findings, is one of introduction of an unauthorised article into a prison. Once the unauthorised introduction is made the offence is complete. It then matters not what is done with the article and it seems to me that if permission is given for a person to bring, in this case cigarettes, into prison there is nothing in the Section prohibiting him doing what he wants with them.

5. It has been suggested by leading Counsel, Mr. Bernacchi, for the appellant, that all visitors are searched and the cigarettes must have been found and permission given for the appellant to keep them. There was no evidence of that from either the Crown or the appellant, understandable perhaps because it seems that point was not considered of importance.

6. It was also suggested by Mr. Bernacchi that the words in Section 18 "with intent that it shall come into the possession of any prisoner" govern the whole Section. It may well be that was the view of the prosecutor but it is not correct, as indeed the learned magistrate so finds and I wholly agree with him. Those words clearly only apply to articles deposited outside a prison.

7. I am satisfied that the learned magistrate was quite correct in his findings and on the evidence I would entirely agree with his conclusion that the appellant did deposit, not drop, the cigarettes in the toilet. What I do find unsatisfactory is the difference between the charge and the particulars and the way in which the Crown's case was put i.e. proving the depositing not the introduction. By this it seems to me that the appellant was led to believe that that was what he had to disprove.

8. It seems to me that that section is intended to cover three ways in which unauthorised articles could be conveyed to a prisoner. They can be:

9. If the appellant was searched on arrival at the pier, the cigarettes discovered but he was allowed to keep them he could clearly take that is being permitted. I do not think that anything he did with them after that could constitute an offence. If he concealed them on arrival so they were not found that in itself may well be sufficient to show unauthorised introduction.

10. The appellant was charged with introducing unauthorised articles into a prison. The evidence was entierly directed to his depositing them in a toilet. While it seems clear that if he did so deposit them and I would have been most reluctant to find he did not in view of the clear finding of fact in the Court below, he must have introduced them, there was no evidence about that.

11. I did consider that as the appellant was in his own evidence admitted he had the cigarettes in the visitors room the onus of showing he had permission lay on him, an onus he failed to discharge. It seems clear however that he gave no evidence either way about that because of the wording of the particulars of the charge and because of the nature of the Crown's evidence.

12. If this was a more serious charge I would remit it back so the particulars could be amended and the matter re-heard. However it concerns seven cigarettes which, even putting the Crown's case at its highest, the appellant wanted to give to his brother, a prison inmate. I feel that the interests of justice do not require that the whole matter be gone into again.

13. The appeal is allowed, the conviction set aside and the fine, if paid, must be refunded to the appellant.

Representation:

Mr. Bernacchi, Q.C. (J.S.M.) for appellant

Mr. Westbrook, C.C., for Crown