Cheng Ka Ming Alias Cheng Kai Ming v. The Queen
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CACC000566/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 566 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 29th August 1974. ----------------- JUDGMENT ----------------- 1. The appellant, a prison officer, appeals against both conviction and sentence in respect of two charges. The first charge was of possession of dangerous drugs for the purpose of unlawful trafficking contrary to s.7 of the Dangerous Drugs Ordinance (Cap. 134). The drugs were found in a cigarette packet contained in a drawer of a wardrobe in the appellant's bedroom at his married quarters. At his trial the appellant's defence was that the drugs had been planted there probably by another named prison officer; this defence made no impression upon the learned magistrate and although in this Court Mr. Bernacchi, for the appellant, has urged everything which could possibly be said against the conviction, I can find no ground for interfering. 2. As to the sentence of 2 ½ years imprisonment imposed upon this charge, the quantity of drugs although not large was sufficient to attract the presumption of possession for the purpose of unlawful trafficking. In sentencing the appellant, however, the learned magistrate said:
3. It is quite clear that in arriving at the sentence the learned magistrate allowed the factor of trafficking "in a prison" to weigh with him. There is, however, not a word of evidence in the transcript to support the suggestion that the trafficking was to take place within a prison. There was of course suspicion but even grave suspicion has no more place in the assessment of sentence than it has in the determination of guilt. The sentence of 2 ½ years imprisonment is set aside and substituted by one of 18 months imprisonment. 4. The second charge accused the appellant of having in his possession, at Stanley Prison, prohibited articles, namely, one HK$100 note, one packet of "Lucky Strike" cigarettes and one lighter, without authorization under the Prison Rules or by the Commissioner of Prisons, contrary to s.18(1) of the Prisons Ordinance (Cap. 234), that subsection reads as follows:
Mr. Hanson, for the Crown, very fairly pointed out that the charge as brought disclosed no offence known to the law since whilst bringing, throwing, introducing or conveying prohibited articles into any prison was an offence, mere possession within the prison was not covered by the subsection. Counsel referred to the power of the magistrate under s.27(1) to amend the charge and said that the magistrate ought to have amended the allegation of possession to one of bringing into the prison - an allegation which was covered by his findings of fact. Counsel went on to ask me to exercise the powers that the magistrate could and should have exercised, by virtue of my powers under s.119(d) of the Magistrates Ordinance. 5. An appellate court is usually slow to amend a charge, for the reason that amendment at the appeal stage denies to the appellant the opportunities of a possibly different line of cross-examination or the calling of different witnesses which would have been available to him had the amendment been made at first instance. That is not to say that an appellate court will decline to amend where the effect of so declining would be that an unquestionably guilty man went scot-free. Having regard to the conviction and sentence upon the first charge, that is not the case here and I declined to exercise my discretion to amend the second charge. That charge being ineffective, the appeal in respect of it succeeds and the fine of $500 imposed upon that charge, which fine has already been paid, must be repaid to the appellant. Representation: B. Bernacchi, Q.C., and John Chau (Patrick Chan & Co.) for appellant. R.V. Hanson, C.C., for respondent. |