Chu Chun Sing v. The Queen

Case No.CACC 539/1976

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000539/1976

IN THE COURT OF APPEAL	1976 No. 539
	(Criminal)

BETWEEN:
	CHU Chun Sing	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J., Pickering, J.A. & Yang, J.

Date of Judgment: 16th July, 1976.

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JUDGMENT

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1. The appellant was charged with two counts, one, possession of dangerous drugs for the purpose of unlawful trafficking and, two, offering an advantage to a public servant. He was found guilty of both offences and sentenced to two years on the first charge and to three months on the second charge, consecutive to the term imposed on the first charge.

2. The history of this case is as follows. The appellant was first convicted of these two offences by a magistrate and sentenced by him on the 15th December, 1975. He appealed against that conviction and sentence and that appeal was heard on the 10th March, 1976. The judge allowed the appeal, but ordered a retrial. The appellant was retried on the same charges by another magistrate and again convicted on the 26th April, 1976, when the sentences referred to above were imposed. The appellant again appealed to the High Court against his conviction and the judge who heard the appeal directed that it be argued before the Court of Appeal. He also gave leave to the appellant to appeal against his sentences out of time.

3. Mr. Bunting, who appeared for the appellant argued two grounds of appeal, one against the conviction and one against the sentence.

4. It is necessary to go into the facts of the case. The evidence in the first trial of the appellant was to the effect that he was arrested and found in possession of dangerous drugs. Whereupon, he tried to bribe the arresting officer with a sum of money. The drugs consisted of two small packets which were inside a red laisee envelope. The police enclosed the laisee envelope in another envelope. The particulars were written on the outside of the second envelope, and a serial number was added. The appellant then signed his name and impressed his fingerprint. The envelope was then sent to the Government Chemist. The Government Chemist signed a certificate to the effect that the package contained two polythene bags, each containing a mixture containing salts of esters of morphine - total weight of mixture 28.1 grammes: total weight of salts of esters of morphine 9.9 grammes. The certificate is dated the 29th November, 1975 and bears the same serial number as that placed on the envelope by the police.

5. At the trial, the packet of dangerous drugs was before the court. As I have said above, the appellant appealed against this decision and a new trial was ordered.

6. The fact that he appealed was apparently not brought to the notice of the authorities and the drugs were destroyed.

7. When the appellant was tried on the second occasion therefore there were no drugs before the court. All that the court had was the evidence of the witnesses who stated that they found the drugs on the appellant and handed them, properly sealed, to the Government Chemist who provided the certificate. The certificate was exhibited.

8. Mr. Bunting urged that it was necessary for the drugs to have been an exhibit. We do not think that in this particular case that that was necessary, however desirable it may have been. There was evidence before the court that a packet was found on the accused, that packet was analysed and a certificate of the Government Chemist was issued to the effect that that packet contained dangerous drugs. And we think that there is no merit in Mr. Bunting's suggestion that the appellant was unfairly prejudiced by being deprived of an opportunity of having his own analysis made of the contents of the packet. This was not suggested to the magistrate nor was any request made to the Crown to call the Government Chemist as a witness so that he could be cross-examined. In the event, therefore, we dismissed the appeal against conviction.

9. The learned judge who directed that the Court of Appeal should hear this appeal drew attention to the fact that in sentencing the appellant the magistrate stated that the appellant was entitled to have the period in custody count towards his sentence and referred to section 67A of the Criminal Procedure Ordinance. The relevant portion of this reads as follows:-

"	67A. (2) The length of any term of imprisonment imposed by a court shall be treated as reduced by any period during which the offender was in custody before the sentence by reason only of having been
	........................................

(c) remanded after arraignment."

Subsection (3) of this same section states that for the purposes of this section the expression "court" includes the District Court or a magistrate.

10. This matter had come before the court previously in Application for Review No. 17 of 1973, the Attorney General v. Li Yu Kai and Others, a case which was commented on in the local publication "Obiter Dicta" in Vol. 3(1) of 1976. In that case the Court held that the term "arraignment" was equivalent to "plea". However, the decision in that case did not turn upon this point and the expressions used were obiter.

11. It was argued before us on appeal that the expression "remand after arraignment" could only refer to proceedings in the High Court. Therefore, any time spent in custody after a plea has been taken in a Magistrates Court and before sentence should not automatically be taken into account in reduction of that sentence since there could be no "arraignment" in a Magistrates Court. There is no definition of the word "arraignment" in the Criminal Procedure Ordinance or elsewhere in the Laws of Hong Kong. And the verb "to arraign" means simply "to call one to account". It is true that the word "arraignment" is often used in conjunction with the expression "on an indictment". For example, both sections 51 and 51A of the Criminal Procedure Ordinance refer to a person being "arraigned on an indictment". However, by reason of the wording of section 67A, especially subsection (3) thereof, and in the absence of a definition expressly limiting the use of the word to pleas taken in the High Court, we think that that is too narrow an interpretation. We think that we should follow the dicta in the Attorney General v. Li Yu Kai and Others and that that wider interpretation is the correct one.

12. We think that the expression "remand after arraignment" includes a remand after a plea has been taken in the District Court or in a Magistrates Court. It also, of course, includes a remand after an arraignment on an indictment in the High Court.

13. In the event, we order that the sentence of imprisonment passed on the first count on the appellant shall run from the 15th day of December, 1975.

	(Geoffrey Briggs)
	President.

Representation:

Bunting (Gunston & Chow) for appellant.

Little, C.C., for Crown/Respondent.