Lam Ka-lun v. The Queen

CACC000678/1982

Trafficking of Dangerous Drugs - Standard of proof - Evidence to show "the substance" is a dangerous drug.

BETWEEN

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Coram: Barnes, J.

Date: 11 August 1982

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JUDGMENT

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1. The appellant was charged as follows: -

"AMENDED CHARGE

CHARGE A TRAFFICKING OF DANGEROUS DRUG

2. He pleaded not guilty but, after trial, was found guilty, according to the Minute of Conviction, of the offence described in the same way and with the same particulars as in the charge just quoted.

3. Section 4 of the Dangerous Drugs Ordinance ("the Ordinance") provides: -

4. Section 2 of the Ordinance provides: -

"'dangerous drug' means any of the drugs or substances specified in Part I of the First Schedule."

5. There is nothing in the evidence, the decision delivered by the learned magistrate at the conclusion of the trial or the Statement of Findings prepared for this appeal to show: -

(a) how the court came to the conclusion that the substance referred to in the evidence as "suspected dangerous drugs" was "heroin"; and

(b) how, since "heroin" is not specified by that name in Part 2 of the First Schedule to the Ordinance, the court concluded that the substance in question was a dangerous drug within the meaning of that term in section 4(1)(a) of the Ordinance.

6. There is no certificate, or copy of a certificate, under the hand of a Government Chemist to be found either in the appeal file or in the file containing the original record of the proceedings. The only references to any such certificate are the following: -

(1) Before the first witness for the Prosecution was called the solicitor who represented the appellant at the trial said: -

"Case will proceed - no argument on any facts. Only Government Chemist's Certificate admitted.

Estimated duration half day."

(2) After the last witness for the Prosecution had completed his evidence the learned magistrate made the following notes: -

"Evidence of Drugs Disposal Constable agreed on.

Submit Chemist's Certificate - also that $170 taken from defendant by PW3.

Case for Crown."

From, those references it appears that everyone connected with the case accepted that the substance in question had been analysed by a Government Chemist and that a certificate setting out the result of that analysis existed. But what that result was cannot be discovered from the record. It is unlikely that a Government Chemist would use layman's language to describe the result of his chemical analysis. If he did, then the magistrate would not have had evidence that the substance was specified in Part I of the First Schedule of the Ordinance and therefore should have ruled that there was no case to answer. If the Government Chemist did describe the result of his analysis in technical terms, then the magistrate should have (noticed the variance between that and the particulars given in the charge. If such a variance existed and he did not notice it can be confidently said that he properly directed his mind to the question whether the evidence established proof of every element of the offence beyond a reasonable doubt? I do not think it could.

7. There is, however, a further matter which causes me concern. After the close of the Prosecution case the appellant elected not to give evidence and not to call witnesses. His solicitor then addressed the court. At the conclusion of his address the magistrate adjourned the case to the afternoon of the next day in order to consider his verdict. When the matter came on again he gave his decision and recorded it in the following form: -

"The evidence is that the defendant was observed to make two exchanges of 'something' with two other persons one at 12.10 p.m. and the other at 2 p.m.- in the first instance the alleged purchaser was not followed and arrested. However in the second transaction the buyer was identified - by being arrested with a quantity of dangerous drugs. Money was found on the defendant. There is also evidence that the money was seen to be handed over to the defendant.

The Court is entitled to draw the inference from the above that the first transaction was also one involving dangerous drugs.

……………………

Defence has agreed on the Government Certificates therefore it is not fatal to prosecution not to have identified dangerous drugs in Court.

In all I find that Charge A has been proved, and the defendant is convicted."

His Statement of Findings reads as follows: -

"The prosecution evidence was given by 3 witnesses, all police officers. The charges arose out of an operation by Inspector ......... and his squad who, acting on information, set up an observation post...... From there observations were made of the activities of the Defendant ........ According to the evidence two, alleged transactions were observed. The first at 12 o'clock noon, in which an unidentified man approached the Defendant and an exchange of something was seen. The unidentified man was not apprehended. Thus there is no direct evidence as to whether any dangerous drug was involved in the transaction.

The second instance occurred at 2 .p.m., when the Defendant was positively seen to receive banknotes from a man, who was given something by the Defendant. That man was followed and arrested and a quantity of dangerous drugs was found on him..........

Defence Counsel attacked the Prosecution evidence on three points, i.e.:

(a) ………….

(b) that neither prosecution witness who gave evidence about the transaction could say that they actually saw dangerous drugs being given by the Defendant to the 'buyer'.

I found that this is not a fatal flaw, as during an observation of this kind, police can never be so close to the scene as to actually see the substance being given by the Defendant to a buyer. It is sufficient if the buyer is found immediately afterwards with dangerous drugs in his possession as was the case here.

(c) ............." (My emphasis).

8. I have set out the original reasons and the Statement of Findings rather fully because they disclose, I think, a serious misdirection. I should interpolate here that "immediately afterwards" did not mean, on the evidence, at the spot where the exchange took place. The officer who searched the other man had to follow him for some unspecified distance along Ma Tau Kok Road before catching up with him and searching him.

9. An essential element of this offence is "trafficking". By definition in section 2 of the Ordinance that means, for the purposes of this case, a dealing in or with a dangerous drug. To be satisfied by the evidence in this case that that element had been proved beyond a reasonable doubt the magistrate would have had to say to himself: do the proved circumstances allow no other reasonable inference than that the defendant gave to the other man the suspect substance found on him? The probability was high that he did but the chain of circumstances did not exclude a likelihood that the other man obtained the suspect substance elsewhere and obtained something apart from that from the defendant. The evidence which the magistrate quotes does not amount to proof beyond a reasonable doubt of that element. When he says, in the context of the evidence he relies on, that "it is sufficient if the buyer is found immediately afterwards with dangerous drugs in his possession", he is Jumping a gap in the chain of proof required when the standard to be applied is proof beyond a reasonable doubt. The officer who saw the exchange said that the other man held what the defendant gave him in his right hand. He gave no description of size, shape or appearance of the thing. The officer who found the substance did not say where on the other man he found it. There was other circumstantial evidence which, if the magistrate accepted it, could have led him to conclude that this element had been proved to the required standard. But that evidence, adduced in the main to substantiate another charge, was apparently rejected. I say that because (a) that charge was dismissed, and (b) the magistrate made no reference to that evidence in either his reasons for verdict or his Statement of Findings.

10. There are, therefore, indications that the magistrate did not properly direct himself as to the onus and standard of proof and that, if he had, he should not have convicted the appellant of an offence against section 4(1)(a) of the Ordinance. I, therefore, allow the appeal, quash the conviction and sentence and set aside the order for payment of costs. I further order that, if costs have been paid by the appellant pursuant to that order, he be repaid whatever sum he has already paid.

Representation:

Appellant in person.

Mr. Whitehouse, Crown Counsel, for the Crown.