Tong Ka-ming v. The Queen

CACC000667/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 667 OF 1979

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Coram: Power, J. in Court

Date of Judgment: 3 August 1979

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JUDGMENT

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1. In this matter the appellant was convicted on the 28th of May 1979 and sentenced to be detained in a Drug Addiction Treatment Centre. He had been charged with the offence of trafficking in a dangerous drug.

2. When the appellant was first brought before the Court on the 20th of February 1979 he had pleaded not guilty to the charge. When the matter came on for hearing on the 2nd of April 1979 he pleaded guilty to the charge and admitted the facts which were read to him. He was then remanded in jail custody for a Drug Addiction Treatment Centre charge until the 17th of April 1979. When he appeared again on that date he stated that he had not been feeling well on the day of the last hearing and that he now wanted to make it clear that he did not possess any drugs. The matter was then set down for hearing on the 14th of May 1979.

3. After hearing evidence the learned magistrate was satisfied beyond reasonable doubt as to his guilt and he convicted him. The prosecution called two constables, who gave evidence of the arrest of the accused, and the drug disposal constable. In cross-examination the appellant suggested to the two arresting officers that their evidence, in so far as it stated that they had taken him straight back to the Yaumati Police Station after his arrest, was incorrect.

4. The appellant gave evidence in which he denied having been in possession of dangerous drugs and said that after apprehension by the police officers:

"I thought the 3 were taking us to police station for enquiry, but we were taken into Hygiene Section of Urban Services Department near basketball playground near Treasure Restaurant. They told the 2 workers to go away. The 2 of us were taken into a room and the door was closed. This officer assaulted me (P.W.2) but I did not see a doctor and have no medical evidence to support me. D.1 was also kicked. D.1 walked out of the door with P.W.2 and stayed outside for about 15 minutes while the other 2 police constables were watching me in the room with the door closed. Then P.W.2 produced a packet (he returned). He said to me "None of your nonsense now. I saw Tsui Kei-yip sell the white powder to you." The tall police constable (P.W.1) then took 10 odd $1.- coins from Tsui Kei-yip and he took out $20.- paper note and said the money would be exhibit in Court and said that Tsui Kei-yip was selling the white powder to me and I was buying and we stayed 1 hour at that spot and later the Foreman of the Urban Services Department came back and said he was in a hurry to go off duty so we left. We were brought to police station."

5. At the end of the appellant's evidence the following exchange occurred:-

"Court

6. It is true that the appellant had been arrested on the 15th and that a considerable time elapsed between that date and the date of his trial. However he was unrepresented and he was maintaining throughout his trial that the sequence of events after his apprehension by the police was not as the police contended it to be. His request for a witness summons to the Foreman of the Urban Services Department should certainly have been made at an earlier date, however, I am satisfied that this request should not have been refused. It is of paramount importance that an accused be given every opportunity to place his defence fully before the Court. I fully appreciate that accused persons at times deliberately prevaricate and delay proceedings by suggesting the existence of witnesses who, they say, would be helpful to them and that in some circumstances a refusal of an adjournment or a further adjournment, for the purpose of enabling the accused to look for further witnesses, may be justified.

7. The present case is a borderline one but I am satisfied that the accused, who had not previously sought an adjournment on this ground, should have been given one to allow him to issue a witness subpoena to the Foreman of the Urban Services Department. I order that the conviction be quashed and the matter be remitted to another magistrate for a fresh hearing.

Representation:

Appellant in person

Reid, Crown Counsel, for respondent