The Queen v. Yip Wai Por

CACC000502/1988

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Coram: Yang ,Q J Silke ,V.-I.& Penlington, J.A.

Date of Eearing: 18 April 1989

Date of Judgment: 18 April 1989

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J U D G M E N T

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Silke,VP:

1. The Applicant, Yip Wai Por, was convicted after trial before His Honour Judge Downey for the offence of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to a period of five years' imprisonment. He now seeks leave to appeal against that conviction. He has abandoned in the face of this Court his application concerning sentence.

2. It was the case for the Crown that on 19th June 1988 at about 8 o'lock in the evening in the Tai Hang Tung Football Flay ground the Applicant was apprebended. He was carrying a magazine and inside that magazine was a plastic bag containing dangerous drugs. It was also wrapped in newspaper. The quantity concerned was 222.60 grammes of a mixture containing 17.79 grammes of salts of esters of morphine.

3. At the time of his apprehension it was alleged that he said to the police officers that it was for his own consumption. At the course of the trial be deried making any such statement. He said that he was simply jogging in the park, saw a magazine on the ground, picked it up finding a package underneath it. That had happened very close to the time when be was apprehended by the police. He did not know the contents of that package until the police unwrapped it.

4. He had upon arrest been brought back to the police station and signed in a constable's notebook a recording of the statement be was said to have made at the scene. At trial that recording was assailed as having been induced. In the end the trial judge placed no weight upon the actual record in the notebook but did place weight upon the verbal evidence of the constable as to what was said at said at the scene.

5. In the course of the trial the Chemist's Certficate was produced. The trial judge had reservations as to the chain of evidence. That is the chain leading from the seizure of drugs through the police station to the Government Chemist and the back to the police station again with the Chemist's Certificate. These doubts related to the fact that there were two plastic bags in the exhibits which were actually produced and that there was a difference in duality between one small portion of the drugs and the rest.

6. In order to clarify that matter the Government Chemist was called in evidence. It was unclean as to whether be was called under subsection (3) of section 25 of the Evidence Ordinance by the Court of its own motion or whether be was called by the prosecution but that matters not.

7. The trial judge's doubts in relation to the chain were resolved by the evidence giver by the signatory of the statement and stated himself to be satisfied that it had been proved to the extent of the burden upon the Crown.

8. The trial judge, sitting as he must as judge and jury, disbelieved the evidence given by the Applicant and gave consideration to that evidence and the reason of his disbelief in a lengthy Reasons for Verdict. It is not contested that upon the evidence before him be was entitled to come to the conclusion be did: that is of the guilt of the Applicant.

9. The only ground of appeal which lies for consideration comes from the industrious examination by Mr. Matthews, who appears in this Court for the Applicant, of the trial record and one passage in particular in the evidence given by Dr. Lau, the Government Chemist. The ground is this.

"That the learned Judge erred in convicting the Appellant of the offence wherewith he was charged on the basis that there was no eviderce fit for his consideration that the gas chromatograph analysis machine had been primed with the correct control sample. In the premises the learned Judge was unable to place any reliance upon the evidence of analysis of the substances comprising exhibit P.3 [that was said to be drugs]

10. Mr. Matthews accepts, quite properly, that this is a point which was never raised in the Court below and was not in consequerce drawn to the attention of the trial judge. He submits that if the trial judge had considered this point, given the criticisms which he did level against the method of analysis, that he might well, technical though this point may be, have held, as it was in Wan Pui Hay Criminal Applicant No. 471 of  1986 (unroported), that the is entitled to rely on the law as it stands and here to have succeeded or technical points.

11. In the course of his evidence, Dr. Lau Chau Ming who has been the Government Chemist since March 1984, explained the process by which an analysis is made of a suspected drug seizure. First a random sample is taken from the item to be analysed. This is done by coning and quartering and results in an amount of approximately ore-tenth of the total substance being separated from it. Then a quantity analysis is made to ascertain theamourt of drugs in the mixture. The Government Chemist is provided with a machine which has been devised to give a quantity analysis of salts of esters of morphine. This analysis results in a computer print out and comes from a comparison of that which is called "standard mixture", or as we understand it "control mixture", with the sample of the substance to be tested. The machine is called a gas chromatograph machine. It is capable of separating components in a mixture. The sample for analysis has to be in liquid form. It is injected into the machine and the outcome is a record of the components in the sample.

12. In cross-examination and this is the passage which gives rise to the ground the Government Chemist was asked:

"Q    Solution you use for comparison - are they made up for each occasion or do you have a stock?

A I think we have a stone - and take out every day - not done by me.

Q Who would that he done by?

A By a chemist during moutine maintenance of the making.

Q So any result you get are depending upon that chemist having used the right solution?

A That's correct."

13. It is the submission of Mr. Matthews that this particular piece of evidence is hearsay and upon which the Government Chemist in the signing of the Certificate was not entitled to rely.

14. Section 25 of the Pviderce Ordinance provides for the admission in evidence of documents signed by the Government Chemist which purport to be a certificate as to any substance submitted to him without further proof and goes on to provide in paragragh (a) of subsection (1):

"unless the contrary is proved the court before which such document is produced shall presume that the signature to the document is genuine and that the person signing it was the Government Chemist at the time when he signed it."

No issue was taken as to this here.

Paragraph (1) of the subsection goes on:

"such document shall be prima facie evidence of all matters contained therein."

Subsection(2) of section 25 reads :

"A document giver for the purpose of subsection (1) may be signed by the Government Chemist when any examination or analysis has been made by a person acting under his supervision and direction and the Government Chemist is satisfied as to the examination or analysis."

15. Mr. Matthews seeks to distinguish Wan Pui Hay from this instance case. Priefly in Wan the Government Chemist had as was said by Kempsten, J.A., in giving the judgment of the Court implicitly relied or the assurance of a third party not called to give evidence. The definitive tests upon which both his Certificate and his oral testimony was based involved comparison with a standard substance provided by the United States Pharmacopoeia warranted to constitute tetrabydrooannabinol. The Court held that the Government Chemist was prefectly entitled to place reliance on the word of others and which led up to his issuance of his Certificate.

16. Here, it suggested that which was said in the passage to which we have made reference was of different category. There was no direct eviderce as to the actual control sample on its nature but, with respect, the technical staff of the Government Chemist must be taker, until the contrary is proved, to he acting under his supervision and direction and the issue of the Certificate is and remains prima facie evidence of patters contained in it.

17. Normally any prima facie evidece would have to he upset by other evidence though, of course, we accept that matters can emerge from the Prosecution case it self which are sufficient to rebut it. Weight remains for the trial judge. Here, the Government Chemist was entitled to rely is satisfied and the fact of the existence of the Certificate indicates that he was, upon his subordinates work. The Court was entitle to rely on his evidence as to that which took place unless it was shown to the Court specifically in this particular case that the matters relied upon by the Government Chemist were unsound. Of that there was no such evidence.

18. That being the sole ground appeal this application for leave to appeal against conviction is refused.

Representation:

Jerome Mattbews, Esc. (Tang, Wong & Cheung) for Applicant

A.A. Bruce, Esp. for Crown/Respondent