Li Pui Chik v. The Queen

CACC000076/1978

Coram: Trainor, J.

Date of Judgment: 22nd March, 1978.

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JUDGMENT

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1. Li Pui Chik was convicted of being in possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to 15 months' imprisonment. He now appeals against his conviction and sentence. As the learned magistrate according to his statement of findings reached his conclusion by way of matters which were in complete conflict with the evidence I do not propose to review the facts of this case but merely to refer to those aspects of the evidence to which he referred and which I consider to be in conflict with the facts.

2. Having reviewed the evidence in the case he proceeded to deal with the defence's evidence and said:

"I would deal with the defendant's wife's evidence first. Her evidence about an officer going downstairs first with the car keys did not assist the defence very much in that the defendant's version was that no officer came up after the car keys had been taken downstairs by the first officer who left the premises first whereas she stated in no uncertain terms that the officer returned and stated that 'Let's go now!' or 'We could go now' or words to that effect."

3. The suggested conflict between the evidence of the appellant and his wife is there obvious: the accused said that no officer came up whereas his wife said, and in no uncertain terms, that the officer returned. The evidence of the appellant to which the learned magistrate was there referring reads as follows:

"A police officer went downstairs first ... he was not in uniform .... that person did not come up before we all went down."

The evidence of the wife to which the magistrate was referring reads as follows:

"Shortly afterwards, an officer asked for my husband's car key and also asked of us to where he had parked his car. After taking the car key that officer went downstairs. My husband did not go down with that officer. After about 10-15 minutes, some officers came up and said, 'Let's go now' or 'We could go now'".

4. The matter with which the evidence was there dealing was about dangerous drugs that were found in the appellant's car. The appellant maintained that he knew nothing about those drugs and, obviously, the implication was that they had been placed there by the police. That was a matter which required the most careful scrutiny, and for the learned magistrate to dismiss the evidence of the defendant's wife by attributing to her something that she did not say and to find support for that dismissal by a reference to something that her husband did not say establishes that no correct or indeed any examination of the evidence of the defence was made by the learned magistrate. It was impossible for him properly to assess the defence's evidence if he were operating from a false premise. Later in his statement of findings the magistrate said:

"The defendant had me believe that at each of the two locations where the drugs were alleged to have been found he said that an officer had preceded him in going to those places. It was significant to note that in evidence in chief he stated that P.W.2 was one of the several officers who went ahead of him to the flat whereas in the cross-examination of P.W.1 it was suggested that rather than P.W.1 but another officer who had gone upstairs to the flat before he was taken up to the flat where 16 packets of drugs were found."

That sentence itself is to say the least of it ambiguous but what in fact did the appellant say. It was the appellant's case that when he was arrested outside his house he was kept downstairs for sometime while police officers went up to his flat. They came down later and he was then brought up to the flat where, it was alleged, drugs were found. At that stage in his evidence the appellant said:

"Then three to four persons went upstairs in the lift P.W.1 was one of them. When they went up I remained on ground floor with P.W.2 and another woman. Then they came down again - about 15 minutes later. P.W.1 then said 'he can be taken up!'"

5. It will be noted that the learned magistrate said it was significant that in evidence in chief the appellant said that P.W.2 was one of the several officers who went ahead of him to the flat whereas the evidence demonstrates clearly that the appellant said the very opposite, that is that P.W.2 remained downstairs with him the appellant. By the use of the word "significant" the magistrate there indicated that he was to a considerable extent influenced by what the appellant said at that stage. When it is found that what influenced the magistrate's decision was something that didn't exist it is obvious that his conclusion was fallacious. The unfortunate thing is that immediately after the paragraph I have just quoted the learned magistrate proceeded to say:

"From the demeanour of the defendant in the witness box he did not impress me as a truthful witness and that he had been unreliable and evasive in the cross-examination and I rejected his evidence in toto."

I say unfortunate because it could well be that that conclusion was based on a totally erroneous view as to what had been said by the defendant and his wife.

6. There were other findings of the learned magistrate which were not capable of being found unequivocably on the evidence. On the other hand there were many conflicts in the prosecution evidence. On a comparison of the magistrate's findings with the evidence as recorded this is clearly a case in which it would be unsafe and unsatisfactory to allow the conviction to stand. I allow the appeal and quash the conviction.

Representation:

Mr. Sanguinetti (Johnny T.K. Cheng & Co.) for appellant.

Mr. Dick, C.C. for Crown.