Lo Shun Keung v. The Queen

CACC000973/1978

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Coram: Li, J. in Court

Date of Judgment: 13th November, 1978

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JUDGMENT

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1. The Appellant is convicted of the charge of trafficking in dangerous drugs. The only ground of appeal is that the Appellant was convicted on a charge which was not the one preferred against him. Vide page 3 and page 11 of the transcript of record. Page 3 of the record indicate that the Appellant was charged at all times with the offence of trafficking dangerous drugs. As amended in page 4 the charge against the Appellant is still that of trafficking in dangerous drugs. The evidence against the Appellant at trial was on the basis he was trafficking dangerous drugs. However, the opening of the statement of findings by the learned ...(illegible) Magistrate reads:-

"The Defendant, D1, in the original proceedings pleaded not guilty to a charge of possession of 3 packets of mixture containing salts of ester of morphine; the total weight of the mixture being .7 gramme and that of the salts of ester of morphine being 0.3 gramme. He was convicted and sentenced to 2 years. He now appeals against conviction."

2. That is one indication that what the Magistrate had in mind was the offence of possession of dangerous drugs and not of trafficking. The third paragraph on the same statement reads:-

"The Defendant first elected to remain silent and then subsequently to give evidence. He said that he lived in Belchers Street and was going for congee near North Street when he was intercepted by the police and taken to the police station. The police said that if he had no record he would be released. Instead he was charged. He did not expressly deny possession of drugs but one can assume that he would have done if reminded."

3. This is the second indication in the same statement of findings that the Magistrate directed his mind in his findings to the charge of possession and not of trafficking. The fourth paragraph reads:-

"I did not believe the Defendant and rejected his evidence as untruthful. I accepted the prosecution witnesses as honest and reliable. Their evidence showed and I accepted that the 2nd Defendant gave Defendant money and in return received a packet. The packet could not, of course, be identified but immediately afterwards D2 was found in possession of a packet of dangerous drugs described."

4. The reference to the transfer of the packet might be an indication that the Magistrate was dealing with the offence of trafficking. But there has been no correction to the effect that he was not considering the offence of possession. Before the packet of drug was transferred it could be said that the Appellant was in possession. The statement went on:-

"The amount of money paid could not be specified and the mere possession of the money by the Defendant was not taken as part of the proof against him. Though, of course, if no sufficient sum in banknotes had been in his possession at the time that would have been of considerable advantage to his defence."

Then in the last paragraph he said:-

"In the result I was satisfied beyond reasonable doubt that the Defendant was guilty as charged."

5. It appears, from the statement of findings, that the learned Magistrate while ultimately convicted the Appellant in his words "as charged" which must have meant a charge of trafficking yet in his opening and throughout his statement of findings he was directing his mind to that of possession. In the very first paragraph he said:-

6. On the whole one is left to speculate as to what, in fact, was in the learned Magistrate's mind when he convicted the Appellant as charged. Reading the record as such there is prima facie evidence to support a charge of trafficking as well as possession. The learned Magistrate in his opening sentence said he found him guilty after the Appellant denied the charge of possession. In the end, he said that he found him guilty as charged.

7. In the circumstances the course I am going to take is to quash the conviction and order a trial de novo so as to enable the learned Magistrate to make up his mind and indicate of which offence he convicted the Appellant.

Representation:

Mr. A.J.J. Sanguinetti (D.L.A.) for Appellant

Mr. D.Y. Marash, c.c. for Respondent