Man Wing-hing v. The Queen
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CACC000075/1979
Coram: Briggs, C.J., Pickering, J.A. and Yang,J. Date of Judgment: 14 February 1979 ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of being in possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to three years' imprisonment. He appeals against his conviction. 2. The facts are very simple. There was a police raid on certain premises. The police entered these premises and when they were inside the appellant called out to the occupier of the premises. A police sergeant opened the door, identified himself to the appellant, who then attempted to run away. The sergeant detained him and searched him. He found two packets of what was afterwards proved to be dangerous drugs in his left-hand pocket. The appellant was unrepresented in the court below. Various grounds of appeal were urged but it is only necessary to deal with one, i.e. "That the learned magistrate erred in failing to explain the ... presumption to the appellant prior to the prosecution's evidence being adduced." 3. As part of the Crown's case reliance was placed on the presumption contained in section 46 of the Dangerous Drugs Ordinance. At the close of the case for the prosecution, the magistrate recorded that he explained the effect of that presumption and explained to the defendant what courses were open to him. He referred to his right to call witnesses. The defendant elected to give evidence. 4. It is urged by Mr. Bokhary, on behalf of the appellant, that the learned magistrate was wrong to wait until the case for the prosecution had closed before explaining the effect of the presumption to the unrepresented defendant. He said that the correct time for such an explanation was at the opening of the case for the prosecution. 5. He referred the court to various cases in which the reason for explaining the presumption to an unrepresented defendant was related to the necessity that the defendant should understand what case he had to meet and to allow him to put his case in such a way as to meet the legal effects of the presumption and this, he said, included the cross-examination of Crown witnesses. It was too late to wait until the Crown had closed its case. 6. On the other hand, Mr. Alderdice, who appeared for the Crown, said that the first task of the prosecution was to prove possession and it was only after that had been proved that the presumption could arise and, therefore, the proper time to explain the effect of the presumption was at the close of the case for the prosecution. In the case of CHAN Leung v. The Queen(1), Mr. Justice Li dealt with this problem at length, and reached the conclusion that it was not wrong for the explanation to be made at the close of the prosecution's case. We think that we should follow Mr. Justice Li's decision. 7. There is no doubt that an explanation of the effect of the presumption must be given by a magistrate to an unrepresented defendant charged with an offence similar to that in this appeal, when the Crown is relying on the presumption as part of their case. There is abundant authority for that proposition. But we think that the time at which such an explanation is given must depend upon the individual facts of each case. But we also think that provided the explanation is given by the time the prosecution closes its case, that is not wrong. There may well be cases where it would be more appropriate for such an explanation to be given at an earlier period of time. We do not think it proper to state that the explanation must be given either at the opening of the case of the prosecution or at the closing of the case of the prosecution. We can see cases in which either is appropriate. 8. In the event, therefore, as the magistrate in this case did explain the effects of the presumption, this ground of appeal cannot succeed. It follows that this appeal must be dismissed.
Representation: Bokhary (D.L.A.) for appellant Alderdice for crown (1) Criminal Appeal No. 1205 of 1978. |