Tong Chi Wah v. The Queen

Case No.CACC 490/1977

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000490/1977

IN THE SUPREME COURT

	Criminal Appeal
	1977 No. 490

BETWEEN
	TONG CHI WAH	Appellant
	and
	THE QUEEN	Respondent

Coram: Trainor, J.

Date of Judgment: 10th June, 1977

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JUDGMENT

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1. Tong Chi Wah was convicted of possessing dangerous drugs for the purpose of unlawful trafficking, resisting arrest and smoking a dangerous drug. Against the conviction and the sentences that were imposed as a result he now appeals. The evidence against the appellant was given first by an inspector of police who told of entering a house and then a cubical therein where he said he saw the accused smoking. He gave evidence of the appellant, when he was being dealt with by a police officer, suddenly pushing that police officer to one side, dashing forward and jumping out of a window as a result of which he was very seriously injured. That pushing aside of the police officer and jumping out the window was the evidence to support the charge of resisting arrest.

2. The police officer in question gave evidence also. He told the court that on the 11th January, 1977 he contacted an informer and gave him $135 in bank notes, the numbers of which he had previously recorded. He said he then laid an ambush and saw his informant approach a man and pass money to him. He said he followed the person who had received the money, having in the meantime recovered two packages from the informer. At that stage there was an objection to this evidence as the informer was not being called as a witness and the learned magistrate announced that he was disallowing the question which had been asked, and in his notes recorded the word "prejudice" which I assumed to mean that he considered that the evidence would be more prejudicial to the appellant than probative of the Crown's case.

3. The learned magistrate ultimately found the appellant guilty of possession of drugs for the purpose of unlawful trafficking. Nowhere in his Statement of Findings does he say on what he based his decision: whether it was the fact that the money which he had given to the informer was found in the possession of the appellant, thereby indicating that a transaction had taken place as a result of which the P.C. recovered the two packages to which he referred or whether he based his decision on the presumption because when arrested he had 35 packages containing heroin on a bed beside him is not indicated in the Statement of Findings. There is no doubt that the quantity of drugs found, or alleged to have been found, in the possession of the appellant are such as would raise the presumption. But there is no indication on which of those two grounds the learned magistrate came to his decision.

4. There is an obvious possibility that the learned magistrate did conclude that the appellant had the drugs in his possession for the purpose of trafficking by reason of what was said about the informer because in his statement of the facts of which he said he was quite sure are the following:

	"1.	On the 11th January 1977 about 1900 hours P.C. 1311 recorded the numbers of some bank notes and parted with possession of them.
	11.	The P.C. also recovered $255 in bank notes from the appellant the serial numbers whereof tallied exactly with those earlier recorded by him."

No evidence should have been led by the prosecution in this case to the marking of the bank notes, the passing of them to the informer, the transaction which is alleged to have taken place and the recovery of the money concerned if it were not the intention of the prosecution to call the informer. The marking of the bank notes and the passing of them to the informer was completely irrelevant if there were not evidence from the informer as to how he used them. In the circumstances of this case as it is impossible to decide on what basis the learned magistrate came to his conclusion I think it would be unsafe to allow the conviction for possession of dangerous drugs for the purpose of trafficking to stand. There was however evidence that the appellant when approached, after being followed, was seen sitting on a bed smoking heroin and beside him were the 35 packets to which I have referred and that he was in possession of those packages which contained dangerous drugs should the learned magistrate accept the evidence that was presented. Clearly he did accept that evidence as being true and an analysis of the evidence would suggest that there was no other conclusion that he could have come to other than the truth of that evidence, and the possession of those dangerous drugs by the appellant.

5. In the circumstances I allow the appeal on conviction to the extent that I substitute a conviction for possession of dangerous drugs, that is simple possession of dangerous drugs and as to the other two counts I dismiss the appeal. As to the appeal against sentence the appellant has several convictions for this offence and I impose a penalty of 12 months imprisonment in substitution for the 2½ years. The sentence of 2 months for resisting arrest as imposed by the Court below is confirmed and will be consecutive to the conviction for possession and the appeal against conviction for smoking is dismissed.

Representation:

Appellant in person

Mr. Hodge C.C. for Crown