Leung Muk-yau @ Chung Li-chuen v. The Queen

CACC000501/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 501 OF 1974

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Coram: Briggs, C.J.

Date of Judgment: 29 August 1974

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JUDGMENT

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1. In this case the appellant was convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to two years' imprisonment. He appealed against his conviction.

2. At the time of the offence the appellant was a prisoner serving a sentence of two and a half years for robbery in Stanley Prison. When he was searched he was found to have two packets of drugs which contained 5.3 grammes of salts of esters of morphine.

3. The appellant appeared before the magistrate on June 3rd, 1974 when he pleaded not guilty to the charge. He was then remanded in custody.

4. On June 20th, 1974 he again appeared before another magistrate. In answer to the charge he said, referring presumably to the dangerous drugs: "I had them for my own use - not for trafficking."

5. This is, of course, the equivalent of a plea of not guilty to the offence with which he was charged i.e. possession for the purpose of unlawful trafficking.

6. The record of the proceedings reads thus:-

"Statement of Facts read.

Drugs admitted as P.1 and Certificate as P.2.

7. The defendant then was sworn and gave evidence to the effect that he had the drugs for his own use. He explained the fairly large quantity by saying that it was less easy to purchase drugs inside a prison than outside.

8. With great respect this procedure is not correct. It is, of course, open to an undefended person to make admissions orally in court. But they must be genuine admissions. It is not right to say to a person who has pleaded not guilty "These are the facts on which the prosecution relies to prove your guilt." and then to ask him "Do you admit these facts?"

9. The same point came up in Criminal Appeal 251 of 1974, LAM Man Woo v. The Queen. The facts and the procedure followed were similar to that obtaining in the present case.

10. The judge in that case said this: -

"On a plea of Guilty one commonly sees a note in the form we find here, because although a defendant may confess to the crime charged it is still necessary to ascertain that he admits all the circumstances of the crime alleged by the prosecution. For that purpose it is perfectly proper for a magistrate to ask the defendant whether he admits the facts. It is otherwise where the plea is Not guilty: a defendant who has put himself upon his country may not be questioned about the facts unless and until he has elected to give evidence upon oath, for otherwise the trial assumes the appearance of an inquisition and that is contrary to the basic principles of English law as applicable in Hong Kong."

11. I endorse those words. The correct procedure to adopt when an accused person, who is not represented by counsel or solicitor, answers a charge of possession of dangerous drugs for the purpose of unlawful trafficking with words which show he admits possession of the drugs and possession only, is either to convict him of the lesser offence of simple possession or to enter a plea of not guilty to the offence with which he is charged and to hear the evidence for the prosecution. It is incorrect to take a short cut as was done in this case - and in the case of LAM Man Woo.

12. In the circumstances, I quashed the conviction of possession for the purpose of unlawful trafficking and set aside the sentence and I entered a conviction for unlawful possession of which there was ample evidence in the appellant's own admission - an admission which he repeated in court before me. I imposed a sentence of fifteen months' imprisonment which is to be served consecutively to the sentence which he was serving at the time of the commission of the offence.

Representation:

Appellant in person.

Duncan, C.C., for the Crown/Respondent.