Yuk Mau-kam v. The Queen
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CACC000666/1977
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----------------- Coram: Huggins, J.A. Date of Judgment: 27th July 1977. ----------------- JUDGMENT ----------------- 1. This is indeed an unfortunate case as counsel on both sides have agreed. The Appellant was charged before the magistrate with possession of dangerous drugs for the purpose of unlawful trafficking. The particulars of the charge related to four packets of dangerous drugs as one item and a plastic phial containing another quantity of dangerous drugs as another item. The items were found in two rooms in a resettlement estate. Those rooms, it is conceded, were separate and distinct units. They were in no way connected. Therefore the charge was had for duplicity. The case went to trial and at the end of the prosecution case a submission of no case to answer was made. The learned magistrate, for a reason which I confess is not clear to me, decided that he ought not to proceed with the trial and he ordered a new trial before another magistrate. He purported to do so under s.104 of the Magistrates Ordinance which relates to "rehearing on review". Clearly that was not an appropriate order to be made and upon an appeal to a judge of the Supreme Court this was so held. As a result the magistrate continued with the trial, ruled that there was a case to answer, heard the rest of the case and gave a verdict. The conviction then necessarily was a conviction on the charge as laid, although had the magistrate considered the terms of s.27 of the Magistrates Ordinance he might have found himself compelled to make an amendment before the conviction. He did not make any amendment and counsel for the Crown has asked me at the outset of the appeal to make an amendment which he submits that the magistrate ought to have made at some time during the trial - probably right at the beginning. In a sense it is difficult to see that any real prejudice has resulted, because if this information had been properly laid it would have contained two separate charges in respect of the two items of drugs. There would then have been no question of an election as to which part of the drugs was being charged: both parts would have been relevant and all the evidence could have gone in. The learned magistrate would have been able to convict either on both charges or on one charge, as might have been appropriate. As things are, it is quite clear, in my view, that the conviction is bad, and it seems to me that it would be a strange thing to do to amend a conviction at this stage and, in effect, to amend the whole of the proceedings right back to the information without giving the Appellant all the protection which the Ordinance gives by virtue of s.27. It would not be right for me now to call upon him to plead to the two charges which I think ought to have been laid and to give him an opportunity to call evidence if he so wishes. I have had no authority cited to me which shows that this has ever been done before and I certainly would be very reluctant to lay down a precedent which would enable this sort of thing to be done. 2. The result is that in my view this appeal must be allowed. Although justice may have been done, it certainly has not been seen to be done. I quash the conviction and set aside the sentence. 27th July 1977. Representation: |