Chung Kuen Hong v. The Queen
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CACC000694/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 694 OF 1979 -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 3 August 1979 ----------------- JUDGMENT ----------------- 1. In this matter the appellant appeals against his conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The appellant was charged together with To Kwok Ming with having possession for the purpose of unlawful trafficking of one packet containing 10.44 grammes of a mixture containing 2.66 grammes of salts of esters of morphine. To Kwok Ming was charged with a second charge of possession of a dangerous drug namely two packets each containing a mixture containing salts of esters of morphine. The particulars of this second charge stated that the total weight of the mixture was 1.09 grammes and the total weight of the salts of esters of morphine was 0.18 of a gramme. The two charges were heard together on 6th June 1979. 2. Inspector B. V. Williams, giving evidence for the prosecution, stated that on the 12th of April 1979 he led a party to execute a dangerous drug authorisation at 562A Nathan Road 3rd Floor. He said that on arrival at the premises he and Station Sergeant Yu, having been let in by a Chinese male, went to the far end of the premises where there was a room with a door open. He said that he found the appellant and the other accused sitting on a bed in that room and that on a table a packet containing suspected dangerous drugs was found and that during a search he lifted a blanket on the bed and a polythene bag of suspected dangerous drugs fell out. He said that he kept the bag and later took it to the police station where he gave it to the Drug Disposal Constable. Under cross-examination he said that both the packet and the polythene bag related to the first charge. Station Sergeant Yu gave evidence in which he said that on a chest on the right of the cubicle he found white powder wrapped in paper and that he saw Inspector Williams find a polythene bag of white powder from the bed. He said that he had handed over the larger packet which was wrapped in calender paper and which, it would appear, was the one found from the chest, and a smaller packet and a tinfoil, which it would appear was found from a bed in the corridor, to the Drug Disposal Constable. At first in cross-examination he said that "the packet", which it seemed was the packet wrapped in calender paper, was shown to both the appellant and the other accused and that he did not remember either making a reply. He later said that the appellant had admitted that this packet was his but that neither the appellant or the other accused were asked to whom the polythene bag belonged. There was no evidence from either of these witnesses to suggest that any question had been directed towards the appellant or the other accused with regard to the tenancy or occupancy of the cubicle. Mr Reid, who appeared for the Crown in this appeal, indicated at the outset that the police investigation and the handling by the officers of the exhibits left much to be desired. 3. The Drug Disposal Constable was not called to give evidence. The Learned Magistrate recorded the following note in this regard:
I am not aware of any provision in law which would allow the evidence of the Drug Disposal Constable to be placed before the Court in this way. Section 65(1)(c) of the Criminal Procedure Ordinance does allow for proof by formal admissions, but there were no formal admissions by either Miss Mok or the appellant with regard to the evidence of the Drug Disposal Constable. There was no evidence, by way of formal admission or otherwise, linking the drugs described in the Government Chemist's Certificate with those which the police officers said they had handed to the Drug Disposal Constable. Evidence from a Drug Disposal Constable can only be properly dispensed with in circumstances where there are formal admissions:
4. While it might well be proper to establish this evidence by way of admissions where an accused is represented I have considerable doubt as to the advisability of attempting to follow such a procedure in circumstances where an accused is unrepresented. No procedure is fraught with greater possibility of error than the attempt to save time by the use of formal admissions in criminal cases. If such a procedure is to be followed the admissions must be clear and unequivocal and must be expressly agreed to, in terms, by the defence. 5. The Learned Magistrate allowed a packet marked "3046" to be tendered as Exhibit P1 and two packets marked "3045" be tendered as Exhibit P2. He also allowed the Government Chemist's Certificate for the packet marked "3046" be tendered which was marked Exhibit P3 and a Government Chemist's Certificate for the packets marked "3045" to be tendered which was marked Exhibit P4. A perusal of the Government Chemist's Certificates indicates that these have been given incorrect exhibit numbers as Exhibit P4 relates to packet 3046 and Exhibit P3 relates to packet 3045. We are left with the position both that there is no evidence linking the drugs described in the certificates with those said to have been seized by the police officers and that Government Chemist's Certificates were incorrectly marked. It is clear from a perusal of the evidence of Inspector Williams that it was his intention that the calender wrapped packet and the polythene bag seized in the cubicle should be made the subject of the A charge. However it would appear that this was not done. Although there is no evidence in this regard it seems that Station Sergeant Yu handed the calender wrapped packet and the packet and the tinfoil to the Drug Disposal Constable who, it would appear, marked them with the number "3045". The result of this was that they were made the subject of the simple possession charge which was brought only against the other accused. 6. At the close of the Crown case there were no admissions by either the appellant or the other accused as to the drugs contained in the polythene bag and there were no admissions by the appellant or the second accused as to the tenancy or occupancy of the cubicle in which the police officers said they found the appellant and the other accused and the calender wrapped packet and the polythene bag of dangerous drugs. 7. The appellant gave evidence in which he said that he had a cubicle at 562A Nathan Road 1st floor and that he was in that cubicle alone watching television when the police arrived. He said that his room was searched and that about 15 minutes later an European police officer came with a packet of dangerous drugs which he said were the appellant's. The police officers, in their evidence, never identified the cubicle, in which they said they found the appellant and the other accused, in any specific way and there was no evidence to link the cubicle, which the appellant admitted was his, with that in which the police officers said they found the appellant and the other accused. 8. The Learned Magistrate in his Statement of Findings was satisfied that Exhibit P3, the Government Chemist's Certificate, established that the polythene bag contained 10.44 grammes of a mixture containing 2.66 grammes of salts of esters of morphine. This, as I have already indicated, was not so as Exhibit P3 dealt with two packets which contained a mixture of salts of esters of morphine to a total weight of 1.09 grammes containing 0.18 of a gramme of salts of esters of morphine. However this, of itself, is not of any real significance as, I am satisfied, it was simply and only an error with regard to the numbering of the exhibit. What is of real importance in this regard is that there is, as the evidence stands, no evidence to prove that the dangerous drugs, which the Inspector said he handed to the Drug Disposal Constable, were those referred to in the Government Chemist's Certificate and produced at the trial. 9. When convicting the appellant the Learned Magistrate applied the presumption in Section 41(1)(c) of the Dangerous Drugs Ordinance "on the basis that appellant admitted to being the tenant of those premises and I found that appellant at a material time was in possession of the polythene bag of dangerous drugs". There was, I am satisfied, no evidence before the Learned Magistrate of an admission by the appellant that he was the tenant of the premises in which the police said that they had found dangerous drugs. The police evidence was that they, upon entering the premises, turned left and went to the far end of the premises to a room with a door open in which the appellant and the other accused was sitting on a bed. They did not identify this room with any greater degree of particularity. No witness was asked to draw any sketch and no plan of the premises was tendered. The appellant in his evidence stated that at the time when the police entered the premises he was in his cubicle alone watching television. He did not, in evidence in chief, say exactly where this cubicle was situated and he was asked no questions in this regard in cross-examination. There is no evidence to establish that the cubicle, which the appellant admitted was his, was the cubicle in which the police said they found the dangerous drugs. Even if all of the appellant's evidence be disbelieved, except in so far as he admitted that he occupied a cubicle on the premises, there is still no evidence linking that cubicle to the cubicle in which the police say they found the dangerous drugs. I am quite satisfied, for the above reasons that the conviction must be quashed. Mr Reid said, quite properly in my view, that given the generally unsatisfactory nature of the investigation conducted by the police officers the Crown was not pressing for an order that the matter be reheard. I therefore order that the conviction be quashed and that the appellant be released.
Representation: Appellant in person. Reid, Crown Counsel, for Respondent |