The Queen v. Au Kwok Hing

CACC000449/1988

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Coram: Hon. Cons, v -P., Hunter & Power, JJ.A.

Date of hearing: 31 March 1989

Date of delivery of judgment: 11 April 1989

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. On the 2nd April last year one Au Kwoh Hing ("the Defendant") was intercepted in the street and found to be in possession of a total of 62.47 grammes of a mixture containing 2.89 grammes of salts of esters of morphine. These were contained in 8 small packets inside a larger paper packet in his overcoat pockets. He told the police that he had purchased the drugs out of race winnings that day and denied "using (them) for sale".

2. The Defendant confirmed these matters in his evidence in the court below where he had been charged with possession of dangerous drugs for the purpose of unlawful trafficking. Basically his defence was that, having been an addict for some 3 years, he would purchase 3 to 4 weeks supply of drugs at one time in order to take advantage of the cheaper prices thus obtainable and also to minimise the risk of being caught by the police; on that day he had been fortunate enough to win the "6 up" and having collected a little over $15,000 from the betting centre decided to spend it, or at least a large part of it, on the drugs.

The judge did not believe him. He said -

"    I did not believe the aceused's evidence that he had purchased these drugs for his own consumption. It may be that part of these drugs were for himself, but I do not believe him when he said that all this heroin was to be consumed only by him. I have given careful consideration to his story that the won $15,190.00 on the 6 up. However I do not believe him when he said that he decided there and then to purchase his supply. I consider that this version he gave to the police and in evidence was fabricated for the purpose of meeting the situation he found himself in I do not believe his story about winning $15,190.00 on he 6 up but if he did in fact win that 5 up this would not alter (my) assessment of his evidences."

3. The principal ground advanced in this application for leave to appeal, the judge's finding of is that there was a material irregularity in the course of the trial, in particular when the Defendant was arraigned before him. That part of the trial is recorded in the Judge's note as follows:-

"Re: Possession of a dangerous drug for the purpose of unlawful trafficking Accused speaks and understands Punti. He understands the charge. Charge read and interpreted to accused.

Plea:

Not guilty.

But I admit I was in possession of those drugs for my own consumption."

Then, according to the note, the trial continued with counsel for the Crown opening his case by reference to the written Summary of Factas. In fact what followed was not counsel's opening, but what the judge subsequently called a "discussion between the judge and defence counsel". As is apparent, no record of this was made at the time, and what we know now comes from an affidavit sworn some 3 months layer by counsel who then appeased for the Defendant, (but not in this application) and the comments thereon of the judge and counsel who then appeared for the Crown. Although at first glance the versions of the judge and defence counsel appear to be some way apart, an analysis of their contents shows that to a large extent the differences are in reality only a matter of attitude.

4. The judge describes the incident as a -

"preliminary series of questions by me about whether or not the relevant provisions of the Ordinance had been explained to the Accused so that he was fully aware of his position, of the definition of 'trafficking' and of tale burden that rested upon him of rebutting the presumption upon the balance of probabilities."

He expressly accepts that be also referred to sentencing levels in general, and in particular to a case which he had recently dealt with himself, imposing imprisonment for 3½ years; that, he had added, would be the usual sentence for the amount of drugs stated in the charge on the basis of a not guilty plea. He does not deny making observations that the presumptions in the Dangerous Drugs Ordinance become more difficult to rebut as the amount possessed increases or that in magistrates' courts there is an accepted figure above which rebuttal becomes "practically difficult". The fudge however does emphasize that his concern at the time was that "the accused should be fully aware of his position before the case began" and that counsel "might like to (or should) explain the position to the accused again", which counsel dad dining a short adjournment.

5. There is no suggestion on behalf of the Defendant that the judge acted with anything other than the best interests of the Defendant in mind. Nevertheless it is suggested that no only must justice be seen to be done, but that the judge, having by his remarks predisposed himself to the unlikelihood of a successful rebuttal of the presumptions contained in Section 46 of the Ordinance, may despite his accepted integrity, have prevented himself bath from appearing to assess and from in fact assessing the truth of the applicant's evidence with real objectivity.

6. In our view it is proper,, and indeed his duty, for a judge or magistrate faced with an unrepresented defendant charged with an offence whereby the presumptions contained in the Ordinance may come into play, to explain to the defendant the, peculiar position in which he is thus placed, and if the judge think it appropriate, to grant an adjournment for the defendant to reconsider his stand. He should, of course, note that he has done so in his record. There is no need for him to go further and comment upon sentence which has no relevance ale that stage of the trial, or upon past cases. We would ourselves go further and say that it is highly undesirable that he should do so, for observations upon sentence or past cases at that stage are easily misunderstood.

7. If the person so charged is professionally represented there should in general be no need for the judge to intervene at all, for appropriate ate explanation and advice will already have been given to him. But if the judge, by reason of some special circumstance, should take it upon himself to do so, he should again record the fact briefly in his notes, and it would be as well to record also the reason for his action. None is apparent in the present instance, although counsel now appearing for the Crown has put forward speculation for our consideration. He had also drawn our attention to Stirling v. D.P.P. [1944] A.C. 315 at 327/8 and R. v. Cutter (1944) 30 Cr. App.R. 107 in support of his suggestion that counsel's not having thought it necessary to raise objection a the time indicates that, in his view at least, there was no teal prejudice to the Defendant.

8. There is some force in that approach, although it may be that the full implications of the situation dad not become apparent to counsel until later. But in our view the implications are too serious to be ignored. The confidence of the public in the judicial process cannon be allowed to be put in question ever by the best of intentions. In all the circumstances we feel bound to say that the trial was unsatisfactory.

9. For these reasons we grant the application, treat the hearing as that of the appeal itself, allow the appeal and set aside the conviction recorded below. We would be pleased to hear counsel as to what further order we should now make.

Representation:

G.J.X. McCoy (M/s Tony Kan & Ho) for Applicant

A.A. Bruce Crown Prosecutor for Respondent