Wong Chun Leung v. The Queen

Case No.CACC 1135/1978

Court

Court of Appeal

Date07 Dec 1978

Judge—

Case Document

100%

CACC001135/1978

IN THE SUPREME COURT

	Criminal Appeal
	1978 No. 1135

BETWEEN
	WONG CHUN LEUNG	Appellant
	and
	THE QUEEN	Respondent

Coram: Trainor, J.

Date of Judgment: 7th December, 1978.

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JUDGMENT

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1. On the 11th August last a party of police led by an Inspector went to premises at 39 South Wall Road. On arrival there they were admitted and it was alleged by the first police witness that he went into a cubicle in which he found the appellant. He said that on a table in the cubicle he found 2 phials suspected to contain dangerous drugs. The phials were sent to the Government Chemist and his certificate was the effect that they did indeed contain dangerous drugs.

2. The appellant was arrested and immediately denied that the drugs were his. He said they must have been left by a friend of his who had visited him while he was having a bath, and he gave the friend's name and address. Indeed, he brought the police party to where his friend resided. There was one other witness called by the Crown to support the finding of the dangerous drugs: a police constable who was of the party. Why that witness was called I cannot understand, nor can I understand why having been called his evidence was admitted. His evidence was to the effect that he was in the premises on the occasion but not in the cubicle in which it was alleged the drugs were found. The witness went on to say that he heard the first police witness say that drugs had been found. That was the totality of his evidence.

3. But there was a person who might have given evidence to support the first police witness that the drugs were found there and that was the Inspector who was in charge of the party. He, according to the evidence of the first witness was in the cubicle when the drugs were found. I have said it before, and would like to repeat it again that where there is available a witness who can give important evidence for the prosecution as to what transpired and who is not called the court is entitled to put the most adverse interpretation on the failure of the Crown to call him. Indeed, in this particular case I think it might well be said that the calling of two police witnesses the evidence of one of whom was irrelevant emphasizes what I am trying to say.

4. Be that as it may, as I said earlier the appellant brought the police party to the home of the friend he alleged left the drugs in his premises.

5. At the close of the case for the prosecution the learned magistrate having found that the appellant had a case to answer pointed out to him the courses that he might pursue in making his defence. In his reply the appellant announced that he would elect to remain silent, but said that he had a witness and gave his name and address. He said that as he was in custody he was unable to obtain the witness's presence in court. The learned magistrate adjourned the case and directed that a witness summons issue.

6. When the hearing was resumed the appellant was represented by Mr. Sparrow of Counsel and at his request the learned magistrate permitted the appellant to withdraw his election to remain silent and to give evidence.

7. In his evidence the appellant told what I have already mentioned, i.e. that his friend left the drugs in the cubicle while he was having a bath. The friend was called to give evidence, he was the person for whom the witness summons had been issued. In his evidence the witness said that he had bought the drugs and that he had left them in the appellant's cubicle. He also told why he did so. He confirmed that the police were brought to his home by the appellant in the small hours of the 12th August. He said he there and then told the police that the drugs belonged to him and he was arrested.

8. In his statement of findings one of the observations of the learned magistrate was that this defence witness's evidence did not assist the defendant at all. He preceded that by indicating discrepancies between the evidence of the appellant and the witness. It is true there are some discrepancies but they are insignificant and fall far short of what would be required to discard the important parts of the evidence of the witness or the appellant. The magistrate seemed to suggest a weakness in the witness's evidence because the witness did not tell the police he "owned" the drugs, when he was asked by one of the police officers brought to his home by the appellant, but merely said he "bought" them. The magistrate found that the appellant's evidence "was not credible at all either in that he said as soon as he was shown the two phials of dangerous drugs by the police, he immediately said they belonged to (the witness) although in his evidence he agreed under cross-examination that the witness had never told him what he had left behind". It is difficult to appreciate the magistrate's reasoning there as the appellant gave a very logical reason for his conclusion. He told the Court that while having his bath the witness told him he was leaving something, and the cross-examination to which the magistrate refers went as follows:

	"Q.	When the Inspector showed you the two phials you at once said they belonged to (the witness).
	A.	Yes.
	Q.	Why were you so sure they belonged to him.
	A.	Because besides (the witness) no one else came and he said he would leave something behind."

9. Nowhere in his statement of findings has the learned magistrate pointed out or demonstrated reasons for his disbelief of the appellant or his witness which in my opinion would justify him arriving at the conclusion that the evidence of the appellant's witness did not assist the appellant. The learned magistrate went on to make certain findings but the findings that he made were on matters which were not in dispute. For example it was never disputed that phials were found in the cubicle and that there were drugs in them, or that the appellant was sitting there. The real issue was did they belong to the appellant; had the appellant rebutted the presumption. In my opinion the evidence of the appellant and his witness was very strong indeed for the purpose of upsetting the presumption that arose by reason of the drugs being in the appellant's premises, and the reasons given by the learned magistrate for disbelieving it were far from satisfactory.

10. To off set the evidence for the defence I consider that there would be required the clearest of reasons as to why the learned magistrate should have rejected it. I cannot find them and for that reason I am allowing this appeal.

11. In conclusion I wish to add my support to the learned magistrate when he said at the end of his statement of findings that he deplored the fact that the appellant while on remand was visited by police officers and questioned as to what was happening so far as drugs were concerned in the area in which he lived. As the learned magistrate said, it was tantamount to police harassment of the defendant. I fully endorsed that and I sincerely hope that I shall never hear another example of it and I have no doubt Mr. Alderdice who appeared for the Crown in this appeal and who made his observations on the case generally with that fairness that one always expects and receives from Mr. Alderdice will have the matter considered elsewhere.

(J.P. TRAINOR J.)

Representation:

Appellant in person.

Mr. Alderdice, c.c. for Respondent/Crown.