Kong Leung-hung v. The Queen
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CACC000701/1982 Criminal law - practice and procedure - election by co-defendant whether to give evidence, where more than one defendant - co-defendant entitled to know entire case against him and should not. be called upon to elect until case of first defendant complete. Date of hearing: 26th January, 1983 G. Mackay (D.L.A) for Appellant. McNamara for Crown/Respondent.
BETWEEN
------- Coram: Sir Alan Huggins, V.-P., Barker, J.A. and O'Connor, J. Date of hearing: 26th January, 1983 __________ JUDGMENT __________ Sir Alan Huggins, V.-P. : 1. This Applicant was the 2nd Defendant in an indictment charging two counts, first of manufacturing a dangerous drug and, secondly, possession of dangerous drugs for the purpose of unlawful trafficking. He was tried before a judge and jury and convicted. He applied for heave to appeal. His application was refused by the single judge and is now renewed before us. 2. At the trial the Appellant was, at his own choice, not represented by counsel.. He has today been represented by Mr. Mackay, who has advanced as his main ground of appeal that the learned judge failed adequately to put the case for the defence before the jury. The evidence against the Appellant was that a flat of his was raided by the police and there was found on the premises a large quantity of items which the expert evidence showed was usable for the manufacture of dangerous drugs. At the time of the raid the only person present was a young woman, who at first refused access to the police so that they had to force their way in, and there was evidence that somebody (presumably the woman) had thrown out of the window of the premises a packet found to contain dangerous drugs. On some of the items found in the premises connected with the manufacture of dangerous drugs were the Applicant's finger-prints. 3. The defence was that the police had fabricated this charge against the Applicant in two ways, (1) by bringing the equipment to the premises and (2) by imposing his finger-prints on some of the items which he said he had never touched. It is submitted in particular that the evidence relating to the first charge was not adequately put, because the judge did not mention that there was evidence - and very important evidence - that the expert had made tests for drugs on the person of this Appellant and on the walls of the flat and no traces were found. That no traces were found on the walls was consistent with the defence which was being advanced by the Defendant that the goods had been brought to the premises after use elsewhere and had not been used on the remises. This matter was of vital important to the defence. 4. There was one witness connected with these premises who gave evidence for the prosecution. The learned judge did not pint out to the jury that this witness had a motive for lying and that was an important omission. 5. The second count, although it was separate and distinct from the first of course, was very much bound up with the first one and we do not think that the case as a whole was sufficiently put or that either of the verdicts can safely stand. 6. There was, in addition, an error made by the learned judge on a matter of practice and we think it right to draw attention of trial judges to this matter. At the end of the prosecution case both the defendants were asked to elect whether they were going to give evidence. This was incorrect. The 2nd Defendant should not have been called upon to elect until the whole of the case for the 1st defendant had been closed. He was entitled to know what the case was going to be against him. It is always possible that the evidence given by one defendant may change the case against another and subsequent. defendants are entitled to know the whole of the case against them before they are called upon to elect. 7. In our view this appeal must be allowed and, subject to anything that counsel may have to say to us, we think that there should be a new trial, but we would like to hear counsel on this. 26th January 1983. Representation: G. Mackay (D.L.A) for Appellant. McNamara for Crown/Respondent. |