Li Kau v. The Queen
|
CACC000758/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 758 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 24th November, 1972. ----------------- JUDGMENT ----------------- 1. The Appellant was charged with possession of a dangerous drug for the purpose of unlawful trafficking. Acting on information the police went to Block 14 of the Tai Hang Tung New Estate. On the staircase they saw the Appellant squatting and holding a brown paper bag in his left hand. Another man came up to him and the two men each held out hands towards the other. The police interpreted this as a transaction taking place between them. There were two police officers and one of them chased the Appellant and one chased the other man, the two men having run away as soon as the apparent purchaser noticed that the police were present. Only the Appellant was arrested. He was stopped and the bag was found still in his hand. The officer asked what was in the bag and the Appellant, who appeared to be frightened, said that it was dangerous drugs. He asked for a chance, saying that the drugs were for his own consumption. The contents of the packet were analysed and there were found in it 44 packets containing 1.8 grammes of barbitone and 4.4 grammes of salts of esters of morphine. 2. The Appellant submits that there was no sufficient evidence upon which to found the conviction. That clearly cannot be so. The only point which appeared to me to justify further inquiry arose from the fact that in cross-examination of the first police witness counsel for the Appellant asked for production of the officer's notebook. Unfortunately it does not appear from the record why he sought production of the notebook. The only ground I can conceive why he should want it was to produce it as a prior contradictory statement, although there is no reason to believe that counsel knew that there was anything contradictory in the notebook and it must be observed that it would have been the duty of counsel for the Crown to inform the court had there been anything contradictory in the statement. The learned magistrate intervened and ruled that counsel was not entitled to call for production of the notebook on the ground that it had not been referred to by the witness in his evidence. The learned magistrate referred to a paragraph in Archbold. That paragraph cited a Scottish case, Hinshelwood v. Auld 1926 S.C.(J.) 4, in which the defence had called for production of a police officer's notebook and production had been refused on two grounds, first that the notes, not having been used or referred to by the witness, were not evidence and, secondly, that they were in any event privileged. That case was decided in 1926 and the law of privilege has developed far beyond its then state. Quite properly, in my view, no privilege has been claimed in the present case. Equally the notebook in the present case was not evidence which could be adduced on behalf of the prosecution. It could not be adduced as evidence for the defence if it was sought to say that what was contained in the notebook was true, but there was one aspect which does not appear to have been discussed in Hinshelwood v. Auld: it seems to me that a police officer's notebook can, in certain circumstances, be admissible evidence on behalf of the defence, viz. where a police officer has given oral testimony which contradicts what he had previously recorded in his notebook. If that was the reason why counsel sought production of the notebook in the present case, in my view he was entitled to have it, although, of course, he ran the risk of making the document evidence against him. We do not know, as I have said, why it was called for in the present case and it is desirable in any future case that counsel should be asked why he seeks production of such a document. 3. In the event no prejudice has resulted to the Appellant. I have now been shown the notebook and a translation of it and there is nothing in the statement there recorded by the police officer which appears to be inconsistent with the evidence which he gave. Accordingly, there is no substance to the appeal and the appeal is dismissed. 4. I should perhaps have added that in a case where a notebook is produced it must be borne in mind that the notes therein are notes made to aid the memory of the writer and they must be interpreted in that light. It is always possible that they may give an entirely different sense to the man who wrote them from that given to the person whom I may call the inquisitive reader. 24th November, 1972. Representation: |