Wong Chun Kee v. The Queen
|
CACC001090/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 1090 OF 1980 -----------------
Coram: Garcia J. in Court Date of Judgment: 2nd January 1981 ----------------- JUDGMENT ----------------- 1. The appellant was convicted by the magistrate of possession of apparatus fit and intended for the injection of dangerous drugs contrary to section 36(1) of the Dangerous Drugs Ordinance Chapter 134 and he was ordered to be detained in a drug addiction treatment centre for the statutory period. 2. At about 9.50 p.m. on the 10th of September 1980 the appellant was seen by a resident of Block 12, First Floor, Tung Tun Estate holding a syringe in his left hand with the hypodermic needle inserted into his right arm but there was no liquid in the syringe at that time. This witness who was an assistant officer in the orisons Department then told the appellant to take out the syringe from his arm which he did so, and he was also asked to hand over, including the syringe, a spoon, and some cotton wool saw to have been used in the offence The appellant did so and whilst the witness was holding the articles, the appellant suddenly ran away, rushed out of the bathroom into the street, and the witness then gave chase and caught the appellant in the rear lane. Before he took up the chase however he said that he handed the articles he had obtained from the appellant to his brother and when the appellant was arrested some policemen who were on duty near the scene approached them and the appellant was arrested whilst the articles, i.e. one syringe of with needle, described as one set syringe syringe in the charge, one soon and cotton wool were then handed over to the arresting officer in the presence of the appellant. 3. When the principal witness finished giving his evidence-in-chief the appellant stated to the court that he did not know how to cross-examine the witness as it was his first time in court and he therefore applied for an adjournment in order to engage the services of a lawyer to defend him. The magistrate refused his application on the ground that the appellant had failed to explain why he did not do that during the long period he was on bail Deriding trial. The appellant was arrested on the 10th day of September 1980 and granted bail on the 11th of September 1980. He appeared in court on the 16th of September 1980 for plea and his case was set down for trial for the 30th of November 1980 when he plead not guilty to the charge. Whilst it is in the full discretion of the learned magistrate to grant or to refuse an adjournment depending on the circumstances, nevertheless, there are certain aspects of the evidence of the principal witness for the respondent in this case which would have been better explored if the services of a lawyer had been obtained by the appellant, e.g. in the particulars of the original charge the place where the offence was alleged to have been committed was "the male toilet on the first floor Block 12, Tung Tau Estate, Kowloon" whereas the evidence of the principal witness indicated that he had seen the appellant committing the alleged offence in the bathroom. It may be that the words "bathroom" and "toilet" are often used interchangeably in English but to the appellant who speaks Cantonese there was a difference between "toilet" and "bathroom" because these two were distinct and separate places in the resettlement estate. In fact, on the appellant asking the question: "In police station did you not tell that this thing happened in the toilet and not the bathroom? the reply of the witness was: "I did not tell the police that it was in the bathroom". An amendment to the particulars of the charge was allowed by the magistrate. The evidence of the principal witness to reflect the change of the locus in qun from "male toilet to "the bathroom" against the objections of the appellant. Another example which concerns the particulars of the charge is : the appellant was alleged to have had in his possession "one set of syringe, one spoon with a piece of cigarette filter, fit and intended for the injection of dangerous drug, to wit, salts of esters of morphine. The evidence of the principal witness regarding this matter is as follows: I told him to hand us the syringe, the spoon and the cotton wool". When the articles were examined by the Government Chemist he termed the so-called cotton wool to be a piece of cigarette filter although the police officers dealing with this matter state that it looked like cotton wool. Unfortunately the piece of cigarette filter or cotton wool did not form part of the contents of the sealed envelope which were returned by the Government Chemist to the Dangerous Drugs Disposal P.C. and it is a matter of conjecture as to whether it was a piece of cotton wool or a piece of cigarette filter. These two are again separate and distinct items. Of importance, however, is the fact that at no time was the arresting officer's attention directed to the state of the appellant's right arm which was alleged to have been the site where the appellant had injected some substance and from which the witness had told the appellant to pull out the needle. This has relevance to the question asked by the appellant of the principal witness as follows: Question: "Police asked you what the matter was. You said that I was smoking and both you and another person did not have anything in your hand? Answer: That person was not my younger brother and that person got nothing in his hand". In view of the nature of the evidence adduced from the principal witness and the allegation of the appellant that he had a fight with the principal witness in the past and that this was a frame-up by the witness, an adjournment should in my view have been granted to the appellant in order to enable him to seek legal advice on his defence. I think the appellant should still have an opportunity of doing so and accordingly I order the conviction and order to be set aside and that there be a re-trial before another magistrate.
Representation: Appellant in person Miss Jane Plumptre, Crown Counsel, for Respondent |