Chan Yiu Wing v. The Queen
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CACC001202/1979
Coram: Garcia, J. Date of Judgment: 5 February 1980 ----------------- JUDGMENT ----------------- 1. On 21st July, 1979 the appellant and another person called LAU Wan-Yip were jointly charged with the one offence of smoking a dangerous drug contrary to section 8(1)(b) of the Dangerous Drugs Ordinance, Cap. 134. The appellant pleaded not guilty to the said offence, and Lau did the same and between the date of the plea and the said date set down for hearing, LAU Wan-Yip absconded whilst on bail. The appellant was then tried alone for the said offence on the 9th day of October 1979 and convicted and against that conviction he now appeals. 2. The facts found by the learned magistrate are that at about 9 a.m. on the 21st July, 1979 two police constables i.e. PC 20395 and PC 9370 while on duty in the Kowloon Walled City came upon the appellant and Lau at a staircase of the 1st floor of No. 44 Lung Chun Road in the course of smoking a dangerous drug. The evidence given by PC 20395 and accepted by the magistrate was that he had a clear view of the appellant squatting down on the staircase and holding a tinfoil a burning taper and a match box cover in his mouth whilst his head was bent down. This witness also stated that he had a clear view of what was taking place whilst 8 to 10 feet away from the appellant and that the lighting conditions on the staircase were quite bright and that he was quite familiar with the place in question having been there on many occasions. The magistrate also found that PC 9370's evidence was concerned more with the activities of Lau than with those of the appellant but nevertheless he found that such evidence was able to corroborate the evidence of the other constable on material matters regarding the activities of the appellant. 3. The evidence of both these constables was accepted by the magistrate as he found them to be honest and reliable witnesses and in the absence of any evidence adduced by the appellant he convicted him of the said offence. 4. In his Statement of Findings the magistrate did not advert fully to the evidence of PC 9370 elicited in cross examination by the appellant's counsel at the trial which was that he saw Lau holding a tinfoil in his left hand and a match box cover in his mouth and that when the constable had shouted to the appellant and Lau not to move when he came upon them in the staircase, Lau spat out the match box from his mouth. This constable further stated that when the appellant and Lau saw him and PC 20395, both of them dropped the things and got up and that all this took place in a split second. 5. After the two men had got up from their squatting position PC 9370 says that he picked up "their things" and the things he picked up were a paper packet of suspected dangerous drugs, an empty Winston cigarette packet, a tinfoil, two tissue tapers and one match box and from the place where he picked up these articles he could find no other match boxes. The list of exhibits produced at the trial indicates that only one match box was involved. 6. The two men, it appears from the whole of the evidence, were in the sight of the constables throughout the time when the latter came upon the scene and as all this happened in a split second, I think it could be inferred that neither the appellant or Lau had any opportunity at all of disposing of the match box covers which was said by these witnesses to have been seen in the mouths of the appellant and Lau when they approached the place in question. Another fact which was adduced from the evidence of PC 9370 is that both defendants had their heads bent over one piece of tinfoil and that he saw them holding the tinfoil together. PC 20395 says that the appellant was holding a tinfoil in his left hand, whilst PC 9370 says that Lau was holding the tinfoil also in his left hand and as they both went up the staircase the appellant and Lau were facing them and was squatting side by side in the act of smoking heroin as described earlier. PC 9370 also says that as he walked up the staircase Lau was on his left and the appellant was on his right. This evidence has prompted Mr. Haldane, acting for the appellant, to submit that it was inherently impossible for both the appellant and Lau in their positions indicated, to have held the same tinfoil in their left hands. He further referred to a sketch which was produced at the trial by PC 20395 and this shows clearly the positions of the appellant and Lau at that time. In my view the evidence of either or both of the police constables was incorrect, and this added to the fact that only one of the two, that is, either the appellant or Lau could have had the match box cover in his mouth at the time when the police constables came upon them should have led the magistrate to doubt the evidence adduced on behalf of the defendant, and to question the accuracy of recall of the said witnesses as to what actually occurred that morning. 7. I would also add that the Government Chemist's certificate of the analysis of the exhibits which were picked up by PC 9370 does not indicate that the match box cover had been examined at all, although PC 9370 stated in evidence that he handed it over together with the other exhibits found at the scene, to the Drugs Disposal Constable for eventual transmission to the Government Chemist for analysis. If indeed the match box cover had been used for smoking dangerous drugs as described by the said witnesses, one would have at least expected the Government Chemist to have noted in his certificate that the match box cover had been examined even though no trace of a dangerous drug had been found thereon. 8. In these circumstances I have mentioned the evidence of PC 20395 does not corroborate that of the other constable, and there must clearly be a reasonable doubt as to whether the witnesses actually saw what they had described in their evidence. 9. In my judgment the conviction of the appellant for the instant offence is unsafe and unsatisfactory and accordingly his appeal against conviction is allowed. The fine of $500 is returned to him and the probation order made against him is set aside.
Representation: Mr. W. Haldane of Haldane & Co. for appellant Mr. F.C. Whitehouse, c.c. for Crown |