Lau Kwok-kei v. The Queen

CACC000959/1978

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 959 OF 1978

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Coram: O'Connor, J.

Date of Judgment: 12th December, 1978.

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and he appeals against the conviction. The prosecution evidence was to the effect that two police officers in uniform, acting on information were keeping watch at a road junction and pretending to check illegally parked vehicles. They saw the appellant walking around the area in a suspicious manner and stopped and searched him, finding packets of drugs in his trousers pocket. It was cross-examination by the appellant that brought out the fact that they were pretending to check vehicles. The course of the cross-examination made it quite clear that the appellant had noticed the officer doing this, and the appellant while cross-examining made the comment that having observed police officers in uniform in the close vicinity, he was hardly likely to hang around if he had packets of drugs in his pockets. The appellant during cross-examination of the officers put it to them that he was stopped, questioned and let go, and then the police came after him followed him into a nearby cafe and arrested him there. The officer denied that they had let him go or followed him into a cafe. The appellant gave evidence of having been followed into the cafe and arrested. He denied possessing any drugs. He also called the cafe owner who told of an arrest at the time in question that could have been the incident the appellant told about in evidence. The cafe owner could not identify the person he saw arrested.

2. The learned magistrate in his findings dismissed the evidence of the cafe proprietor in the following words ' the evidence of the appellant's witness was too vague to be of any assistance to the appellant'. I am not quite clear what the learned magistrate meant by that passage. The learned magistrate might have meant that the evidence of the cafe proprietor was so vague that it was not credible, or on the other hand he might have meant that it was so vague that even if acceptable it did not assist the appellant. If the learned magistrate meant the former I do not consider his conclusion to be warranted. The evidence in chief was led by a layman and the lay prosecutor did not cross-examine the witness. The result was that while the witness did not go into detail in his evidence, there is nothing in his evidence to indicate he could not or would not have gone into detail if asked. It is unnecessary for me to consider whether the inferences that may be drawn from failure to cross-examine by a counsel or solicitor are open when the failure is that of a layman

R.v. Suen Chuen and another 1963 HKLR 630

O'Connell v. Adams [1973] R.T.R. 150

However in the circumstances of the evidence being led by a layman and of failure to cross-examine, I do not consider that the evidence of the witness is properly open to criticism for lack of detail.

3. On the other hand the learned magistrate by his criticism may have meant that even if acceptable, the evidence of the proprietor did not assist the appellant. If that is what he meant, I disagree and consider his finding unsupportable. It would seem to me that the fact that the proprietor spoke of an arrest at the time and place that the appellant spoke of indicated they were speaking of the same arrest. It would be stretching the arm of coincidence far for it to have been a different arrest than that of the appellant, but one of which he happened to have detailed knowledge.

4. In the circumstances I allowed the appellant to call further evidence namely that of another witness of the arrest. I also heard further evidence from the cafe proprietor. In the light of this further evidence it was clear the conviction could not stand and the Crown did not seek to uphold it.

Representation:

Appellant in person

Alderdice for Crown/Respondent