Chan Sing Wah v. The Queen

CACC000481/1977

Coram: Morley-John, J.

Date of Judgment: 27th May, 1977.

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JUDGMENT

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1. The appellant was found guilty of two offences namely possession of dangerous drugs for the purpose of unlawful trafficking and of resisting arrest. He has appealed against these convictions on the ground that there is no evidence or no sufficient evidence whereon found the said convictions.

2. The evidence for the prosecution was given by one police constable. This witness's evidence was very short indeed and as the appellant was not represented cross examination was virtually non existent. With respect to the learned magistrate I do consider that he himself, although not entering into the arena, might have asked at least a few questions by way of clarification. The police constable said that he entered a lift in Tak Lee Building. In the lift he saw the appellant and they descended to the ground floor together. Then the police constable felt suspicious about the appellant so when he left the lift he revealed his identity stopped and searched the appellant. The P.C. did not say precisely where he searched the appellant. He said when he left he stopped the appellant and searched him. The appellant agreed that the police constable met him in the lift but said that the police constable then took him to the Crown Restaurant and this was never challenged by the prosecution. Counsel for the Crown informed me that from all the evidence it would appear that the police constable and the appellant had left the lift in the Tak Lee Building. If they had proceeded to the Crown Restaurant then this was some two to three blocks away from the Tak Lee Building. The appellant told me that he was handcuffed and searched in the front of the Crown Restaurant but that nothing was found on him and the drugs in question were taken from a flower pot in this restaurant. He said that he never struggled with the police constable that the police constable forced him to the ground and handcuffed him. It seems strange that further evidence could not have been called to support the Crown's case. When did the police constable arrest the appellant and what precisely happened after he had first seen the appellant in the lift? All this did not appear to be clear from the record.

3. On his arrival at the police station the appellant told me that he vehemently denied that the drugs were his and that he wrote a statement to that effect in the police constable's note book. Counsel for the Crown then took instructions and found this to be correct. This note book was never produced before the learned magistrate. The appellant also told me that when he was asked to sign the envelope in which the drugs had been sealed that as well as signing he again wrote to the effect that the contents of the envelope did not belong to him. This envelope also was not produced before the learned magistrate and when I asked to see the envelope I was told that this exhibit had already been destroyed. Once again I must stress that exhibits must not be destroyed before an appeal is disposed of unless most exceptional circumstances exist.

4. Further as Counsel for the Crown pointed out to me, neither in his notes of the case nor in his Statement of Findings did the learned magistrate mention that he had relied on the statutory presumption to find the appellant guilty of trafficking in dangerous drugs. Without such presumption there is no evidence whatsoever to support the charge of trafficking.

5. All in all taking all the circumstances of this case into consideration I find the convictions in this case to be unsafe and unsatisfactory and the appeal is allowed accordingly.

Representation:

Appellant in person

Mr. G.W.Alderdice for Crown/Respondent