Lau Shiu Hop v. The Queen
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CACC000584/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.584 OF 1969. -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 10 September 1969 ----------------- JUDGMENT ----------------- 1. The appellant was charged with the offence of possession of dangerous drugs for the purpose of unlawful trafficking. He pleaded not guilty to that charge. The learned Magistrate, having heard the evidence - including, of course, the evidence of the appellant himself - convicted the appellant of the offence as charged and sentenced him to 2 1/2 years' imprisonment. The appellant now appeals against that conviction. 2. The facts of the case were briefly as follows: The appellant was seen by two police officers on plain clothes duty standing in a staircase smoking a cigarette. The police officers, for reasons presumably within their own personal knowledge, had reason to suspect him. They approached him and searched him and, according to the evidence of the two police officers, found upon him a cigarette packet bound round by an elastic band. Inside the packet they found a number of small packets, 14 in all, which they had reason to suspect were dangerous drugs. The appellant was arrested and taken to the police station. The packets were analysed and found to contain dangerous drugs: 4.8 grammes of barbitone and 1.6 grammes of salts of morphine. 3. The story put forward by the appellant was that although it was perfectly true he was standing at this place smoking a cigarette which did, in fact, contain dangerous drugs, the packets of cigarettes were not found in his possession at all. He said that they were found in a pair of trousers which was hanging up near by. He said that the owner of this pair of trousers, in fact, saw the police arrive and when they arrived he absconded. That was his defence. 4. The learned Magistrate, heard the evidence, believed the two police officers and convicted the appellant of the offence as charged. Quite clearly there was ample evidence, if believed, to support the conviction, and there are really no merits whatsoever in the appeal. 5. But Mr. Boy, who appears on the part of the Crown, has drawn my attention to a matter which is, although perfectly properly raised by him, one of the sheerest technicality. It would appear that the Chemist's Certificate was signed by a Mr. Y.S. Chiu. Up to the 4th July - and this case was in fact determined on the 12th July - it would have been perfectly proper for Mr. Chiu to have signed that certificate, under section 44 of the Dangerous Drugs Ordinance. That section, as it then stood, provided that a certificate in the prescribed form should be presumed to have been signed by the Government Chemist, until the contrary was proved. "Government Chemist," in section 2 of the Ordinance, was defined as a person "so appointed by the Governor and also means such other person as the Director may appoint in writing to carry out the duties of the Government Chemist under this Ordinance". Mr. Boy informs me that Mr. Chiu had in fact been appointed in writing by the Director of Medical and Health Services and had in fact been carrying out these duties of signing these Chemists' Reports for a very long time. However, on the 4th July, by an amendment to the Evidence (Amendment) Ordinance, "Government Chemist" was defined as a person "appointed as such by the Governor and such other person as the Governor may appoint in writing to carry out chemical examinations or analyses of articles or substances and to sign certificates under section 23(D) in relation thereto". Why it was considered necessary to provide that persons carrying out the duties of the Government Chemist should be so authorised by the Governor, as distinct form what had previously been the position that such persons should be authorised by the Director of Medical and Health Services is not apparent, but at any rate the law was so altered. The position is, therefore, that I am now informed by Mr. Boy that that Chemist's Certificate which was produced before the learned Magistrate, and perfectly properly accepted by him, was not properly signed because Mr. Chiu had not been authorised by the Governor in writing to sign such certificates. That is the position as it now stands before me. 6. I suppose there are three courses open to me:- (1) to quash this conviction; (2) to order a retrial; and (3) to take no cognisance of the matter which Mr. Boy has very properly brought to my attention in. I am quite satisfied that it would serve no useful purpose to order a retrial. Equally so, I am satisfied that it would not be proper to quash the conviction; and I say so for these reasons:- the certificate, as I have said, was properly accepted by the learned Magistrate. Indeed, not only was it right for him to accept that certificate but it was his duty at the time so to receive it unless there was any evidence that it had not been signed by the right person. Clearly, there was no such evidence before him. He was bound to accept the certificate and to act upon it. In these circumstances it seems to me that it would be wrong on this point, which is undoubtedly one of the merest technicality, to allow the appeal and quash the conviction. 7. For these reasons I am satisfied that this appeal must be dismissed. Representation: Appellant in person. Boy, D.D.P.P. for Crown/Respondent. |