Ho Cham v. The Queen

Case No.CACC 854/1978

Court

Court of Appeal

Date31 Oct 1978

Judge—

Case Document

100%

CACC000854/1978

IN THE SUPREME COURT

	CRIMINAL APPEAL
	NO. 854 of 1978

BETWEEN
	HO CHAM	Appellant
	and
	THE QUEEN	Respondent

Coram: Zimmern, J.

Date of Judgment: 31st October, 1978.

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JUDGMENT

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1. The appellant was charged first with possession of 8 packets of dangerous drugs for the purpose of unlawful trafficking. Second possession of instrument fit and intended for injection of dangerous drug namely 2 sets of syringe and third possession of instrument fit and intended for smoking of dangerous drug namely 2 tinfoils and 2 spoons each containing a trace of dangerous drugs. He pleaded not guilty to the three charges and was found guilty of the first and not guilty of the other two.

2. Only one witness was called by the prosecution regarding possession and that was a police constable who according to the notes said:

"I rushed inside the factory first to a place behind the boiler there is a pillar there where I saw the defendant by the side of the pillar holding a syringe in his left hand when he saw me he tried to run. I said I am a police constable, don't run. I rushed towards him and cautioned him and put his hands upon the wall and searched him".

He found in the defendant's shirt pocket 8 packets of suspected dangerous drugs. He then said:

"Found by the side of the pillar in a wooden box about 3' high and a red box was on top of it which I opened and found 2 plastic syringes containing suspected dangerous drugs, 2 spoons containing suspected dangerous drugs, 2 tin foils containing traces of dangerous drugs."

3. The defendant gave evidence and said that the dangerous drugs were not found on him although he was searched. He made various accusations against the police. The learned magistrate in his findings did not refer at all to the police officer's evidence that when he rushed into the factory he saw the defendant by the side of a pillar holding a syringe in his left hand. If the defendant had the syringe in his left hand why was he not charged with the possession of the syringe and why was not this syringe produced in Court. Instead he was charged with possession of 2 syringes found in a box in which there was no evidence whatsoever that he was in possession. The mystery of this first syringe ought to have exercised the mind of the learned magistrate unless an explanation was forth coming from the prosecution. If this syringe was merely used as an explanation or reason why he rushed up to the defendant in a factory with other workers about then his evidence cannot be reliable. For the reasons given I consider the verdict unsafe and unsatisfactory. The conviction is quashed and the sentence set aside.

4. The defendant was also fined a sum of $250 under section 100(b) of the Magistrates Ordinance. It would appear that when giving his evidence-in-chief the defendant in answer to a leading question by his solicitor replied in the affirmative that he had worked for 3 to 4 years in the United Enamelware Factory. This after conviction was found to be untrue by the magistrate in as much as for those 3 or 4 years he had spent more time in prison than out. From the record of this matter the following appears:

	"Court:	To Defendant (under Sec. 100(b) Cap. 227). It appears to me that you wilfully gave false evidence of your employment with the United Enamelware Factory for 3-4 years in as much as your criminal record shows you to have been in prison for such of that time. I will adjourn to allow you to consult with your Counsel. 10 minutes later: I do not want an adjournment I want my Counsel to speak for me.
	Counsel:	(Interpreter translates to the defendant) My instructions are that what he meant was that apart form the time spent in prison he had been working there. He could no reveal his imprisonment to the Court. Not a beaten lie did begin to work there 3-4 years.
	Court:	Not satisfied by your explanation. Your evidence had the effect of leading me to believe that you had been in continuous employment by the Company - you might at least have qualified your words by some such expression as "off and on". Fine $250 - under Section 100(b)."

5. From the above record I am not satisfied that the magistrate had expressed himself sufficiently to the defendant so that he knew that unless he showed course the magistrate would impose a fine on him for giving false testimony. The fine is set aside.

Representation:

Miss Jacqueline Leong (DLA) for the Appellant

Stock for Crown