Mo Tak-yuen v. The Queen
|
CACC000716/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 716 OF 1980 -----------------
----------------- Coram: Hon. Silke, J. in Court Date of Judgment: 8th October, 1980 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of an offence contrary to section 8(1)(b) of the Dangerous Drugs Ordinance CAP 134 in brief that he did, on the 6th June 1980, inject a dangerous drug, salts of esters of morphine, other than under and in accordance with the Ordinance or a licence. 2. I allowed the appeal, quashed the conviction and sentence - and refused to accede to the application by Mr. Cross, who appeared for the Crown, for a new trial. 3. I stated I would give my reasons in writing and I now do so. 4. The facts emerged from the evidence of two customs officers: the only two prosecution witnesses: and was to the effect that on the 6th June 1980 in the early morning they were keeping watch on a flat in Shek Kip Mei Estate described by them as "a suspected drug den". 5. At about 7.30 a.m. the appellant was seen to enter the flat and at 8.30 a.m. was seen to leave. 6. He was apprehended and searched but nothing suspicious was found upon him. 7. The appellant was brought back to the flat: it was entered and there another man was found. On a table in the flat were found a syringe, a spoon and an empty plastic phial. The man in the flat - who was the 1st defendant at a joint trial - said the articles belonged to him. He further said he used the syringe for injection and had in fact injected the appellant. These statements do not appear to have been made under caution and no record of them was produced at the trial. 8. The exhibits which were sent to the Government Chemist included a match box, where this was found I know not. 9. The Chemist's report was interesting in that it certifies the spoon, the phial and the match box each contained less than 0.02 gram of salts of esters of morphine but that the syringe contained no dangerous drugs at all. 10. The appellant gave evidence which was to the effect that he went to the flat to wake up his friend who did not want to go out. He saw none of the exhibits in the flat, he left and some distance away was arrested. 11. On being brought back to the flat he then saw the exhibits for the first time. 12. He denies being injected said he did not see the 1st defendant injecting himself. 13. At the outset in the appeal Mr. Cross quite rightly conceded that because of misdirections contained in the learned Magistrate's Statement of Findings he was unable to support the conviction. He then made the application for a new trial and on this issue alone I heard Mr. Sedgwick who appeared for the appellant. 14. In the course of his submission Mr. Sedgwick raised a number of issues which have interest. I shall simply set them out but I do not intend to decide them as they are not germane to the reasons for my decision not to order a new trial and I have not heard full argument upon them. 15. The first concerned the wording of the presumptions contained in Section 48(1) and (2) of the Dangerous Drugs Ordinance. As the presumption relates to a divan and Section 48(2) states that anyone found on or escaping from a divan "shall until the contrary is proved be presumed to have been smoking, inhaling, ingesting or injecting a dangerous drug therein" Mr. Sedgwick asks what is a court to do: toss a coin in respect of these various matters? If a charge included them all I would have thought an argument could be mounted in respect of that charge being bad for duplicity. 16. A more telling point was that, similar to the manufacturing offence in Section 6, there is no presumption as to knowledge relating to Section 8 offences. Therefore knowledge must be proved strictly. No such evidence existed here. 17. However as I say this is by the way. 18. In this statement of findings the learned trial Magistrate had this to say of the exhibits:
19. He did not appear to appreciate the importance to the appellant's case of nothing being found on the syringe. He further made no reference to the proposition that a presumption can be rebutted not only by the evidence of a defendant given in court but also from conclusions drawn from the evidence given by the prosecution witnesses. 20. Had these matters been given consideration I would have thought it probable that at least some doubt would have been cast on the evidence of that which was stated to have been said by the 1st defendant to the prosecution witnesses as to the injecting. Further the possibility of a successful rebuttal of the Section 48 presumptions was very much on the cards. 21. In these circumstances I thought it right not to order a retrial.
Representation: Mr. Sedgwick for Appellant Mr. Cross for Crown |