Law Keung v. The Queen
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CACC000625/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 625 OF 1972 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 31st October, 1972. ----------------- JUDGMENT ----------------- 1. The appellant, who is aged 21, was convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking and he now appeals against that conviction. 2. The brief facts of the case were that three police officers were minding a road block in a street in Kowloon on the evening of the 26th of July. Shortly after mid-night a taxi approached the road block and it was signalled to a halt. There were three persons in the taxi in addition to the driver. A police constable asked the appellant, who was sitting in the front seat next to the driver, to get out, and he then proceeded to search him. The two police officers searched the other passengers - the two occupants in the back of the taxi. On searching the appellant, according to the evidence of the police officer, he found in the pocket of his shirt two packets which he suspected contained dangerous drugs. He accordingly arrested him and took him with the other occupants of the taxi to the police station. It is stated, although not directly relevant to the present charge against this appellant, that one of the other occupants in the back of the taxi was also found in possession of dangerous drugs. He was charged at the same time and he was indeed also tried at the same time as the present appellant. 3. The contents of one of the packets found upon the appellant, when analysed, were found to contain 10.9 grammes of a mixture containing a quantity of barbitone, and the other packet found upon him at the same time was found to contain a mixture containing morphine. That was the story told to the court by the police constable; a perfectly simple straightforward story that, upon searching the appellant he found these drugs in his pocket. 4. The story put forward by the appellant was of an entirely different kind. Whilst admitting that he was in fact in the taxi, he denied that any drugs were found in his possession at all. He said that he was told to get out of the taxi, that he was searched and that nothing was found upon him, and that subsequently the police officer or officers alleged that drugs had been found in the back of the taxi. He was then taken to the police station. 5. Those were the two entirely conflicting stories which were put before the learned magistrate. The magistrate came to the conclusion, and was satisfied beyond reasonable doubt, that the police officer was telling the truth and he accordingly convicted the appellant of the offence as charged. It is against that conviction that the appellant now seeks to appeal. 6. Mr. Gunston, for the appellant, has said with some cogency that this was one man's word against the other, and that it was necessary that the learned magistrate, if he chose to believe one of those persons, should have given his reasons as to why he did so believe him. He has further pointed out that on the face of it it would seem that the appellant's story was the more credible of the two because if in fact there were persons in this taxi carrying drugs then nothing would be more natural than that, if they were stopped by the police, they would quickly get rid of the drugs as best they could, either by throwing them out of the window or, if necessary, throwing them on the floor of the taxi or secreting the drugs somewhere in the taxi rather than leaving the drugs on their own persons. The complaint made by Mr. Gunston is, therefore, that the magistrate has not given his reasons as to why he rejected the appellant's evidence and that he should in fact have done so. 7. The magistrate, in his Statement of Findings, has briefly related the facts of the case and he has then gone on to say that he finds as a fact that the appellant was searched by the police constable and that in his left shirt pocket the constable found two packets of dangerous drugs. That is the finding of fact which is complained of by Mr. Gunston. 8. Section 114(b) of the Magistrates Ordinance provides that:-
9. In the case of R. v. MA Kwai-chong(1) Huggins, J., said, in dealing with a submission of a similar kind put forward to him by Mr. Gunston:
Again, the learned judge went on to say:
10. Indeed, the failure of a magistrate to deal adequately in the appropriate case with the conflicting evidence given before him -thus giving rise to the appellate court holding that the case has not been proved beyond reasonable doubt or, alternatively, that it is unsafe to allow the conviction to stand - may well result in stringent and well-merited criticism such as that made by the Appellate Court in the recent case of LI Chi-kin v. The Queen(2). In that case the appellate judge, in dealing with the somewhat cursory manner in which the magistrate had considered the conflicting evidence given before him, said:-
The learned judge went on to say that the acceptance by the magistrate of the evidence of the prosecution witness without apparent consideration of the formidable body of evidence controverting the testimony of that witness, made it unsafe to conclude that the magistrate, in recording a conviction, had "kept sufficiently in mind the necessity of proof beyond reasonable doubt." He added:-
11. Those are observations with which, in principle and without concerning myself with the facts of that particular case, I respectfully agree: they illustrate the fact that although, as a matter of strict law under the provisions of section 114(b), a magistrate is only required to prepare a statement "of his findings on the facts", where the circumstances of the case require a close analysis of his reasons for his decision and an evaluation of evidence, his failure to do so may result in his decision being upset on the grounds either that the case has not been proved beyond reasonable doubt or that it would be unsafe to allow the conviction to stand. 12. Prior to 1949 appeals from Magistrates Courts were by way of a complete rehearing. In my view, there is a great deal to be said in favour of such a course and, for my part, I would like to see appeals from Magistrates Courts dealt with by way of a completely fresh hearing, as indeed they are in the United Kingdom. But that is not the position in Hong Kong: all that is strictly required is for the magistrate to prepare a signed statement of his findings on the facts. But clearly the length of the Statement of Findings must depend upon the facts and circumstances of each case, and the more complicated the case the more detailed should be the Statement of Findings. 13. Mr. Gunston then referred to the case of LAM Tin-chung v. The Queen(3). In that case the Full Court, rejecting the submission of Crown Counsel that because a District Court judge was a professionally trained lawyer he must be presumed to have evaluated and properly assessed the weight and value of conflicting testimony given before him, went on to say:
14. The provisions relating to the District Court in regard to the pronouncing of its verdict are, however, essentially different to those relating to the magistrate's courts in that section 35 of the District Court Ordinance expressly provides that
15. At a later stage in the judgment in the LAM Tin-chung(3) case the Full Court went on to say:
What, therefore is required from a District Court judge is not simply a statement of his findings but also the reasons for his decision. 16. As a matter of elementary justice, if a person is to be convicted of an offence he is entitled to know the reasons why he is so convicted and where he has given evidence and called witnesses he is entitled to know why, and for what reason, his evidence and that of his witnesses is disbelieved - if indeed that is the case - or why the evidence of a prosecution witness or witnesses is preferred in the realms of credit and credibility to that of himself and any witnesses he may have called. For my part, I have always taken the view that as a matter of practice magistrates should, when necessary, set out fully and concisely not only their findings of fact but the reasons for their decision and their evaluation of the evidence of the witnesses, both of the Crown and the defence given before him. However, there are cases where as the Full Court pointed out in that passage in the LAM Tin-chung(3) case to which I have referred, the court can do little more than say which of the witnesses it believes. If a magistrate can fairly say why he believes or disbelieves a witness, then so much the better; but it is not always easy to give a reason for such belief or disbelief. 17. In the case now under consideration before me it was clearly an issue of credibility as to whether the magistrate believed the police officer or the appellant. He believed the police officer and, by necessary implication, he says so in his findings of fact. There can be no valid ground upon which this court can now properly say that he should not have done so or even that the issue was in doubt. The appeal must accordingly be dismissed. Representation: Gunston for Appellant. Duckett, S.C.C. for Crown/Respondent. (1) 1968 H.K.L.R. 654 at 656 (2) Criminal Appeal No.378 of 1972 (3) 1970 H.K.L.R. 103 at 106 and later at 113 |