Chan Leung v. The Queen

CACC001205/1978

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Coram: Li, J. in Court

Date of Judgment: 12 February 1979

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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. The evidence is straightforward. At about 0015 hours on 24th October last year the Appellant was seen acting in a suspicious manner by two plain clothes detectives on patrol duty in Hong Keung Street, Kowloon. The suspicion was aroused because the Appellant was seen loitering in the vicinity looking from side to side. The Appellant was then stopped and searched. In the Appellant's left upper pocket of the jacket was found two plastic phials containing greyish substance. The Appellant was arrested and the substance tested. The result of the test revealed that there was 3 grammes of mixture containing 0.9 gramme of salts of esters of morphine. Thus the Appellant was charged with the offence of which he has convicted.

2. There is no dispute that the substance contained the quantity of drugs specified aforesaid. The only line of defence by the Appellant was that the drug was not his. It was one of simple denial of possession. When the charge was read and explained to the Appellant in the Court below before the commencement of the trial, the Appellant said:-

"I plead not guilty. The white powder was not mine. I was arrested for theft. I had a trolley with me with paper cartons on it."

As such, the defence was one of denial of possession simpliciter. That was the issue between the prosecution and the defence. It is apparent on record that after every prosecution witness gave evidence the function and purpose of cross-examination was explained to the Appellant. In cross-examination of the arresting officer - the 1st Prosecution Witness, the Appellant first suggested that the drugs were planted on him in the police station to which he was brought. After a few more questions put to the same witness the Appellant suggested that the drugs were planted on him in a car and that the drugs were brought by a woman constable.

3. At the close of the prosecution case the magistrate explained to the Appellant the two courses opened to him - the right to call witnesses, the statutory presumption under Section 46 of the Dangerous Drugs Ordinance, and the onus on the Defendant to rebut the same on the balance of probability - see page 9 of the transcript. The Appellant elected to give evidence.

4. In his evidence he gave his address. He said that he was a cleaner and a refuse-collector and that he was a decent person. In the course of his evidence he was repeatedly reminded by the learned magistrate to tell something or anything about his case. Despite this, all the Appellant said was in the form of two questions namely:-

5. Perhaps I should add that throughout the trial in the court below the Appellant was not legally represented. He now appeals against this conviction and he is represented by counsel.

6. Learned counsel for the Appellant contends that the conviction cannot stand on two grounds. The first is that the learned magistrate failed to explain adequately or at all the nature and effect of the statutory presumption under Section 46 of the Dangerous Drugs Ordinance and the type and quality of evidence capable of rebutting the said presumption. In any event the explanation was not given at the beginning of the trial. His second ground is that the learned magistrate failed to give adequately or at all the unrepresented Defendant/Appellant assistance as is necessary for the proper conduct of his defence in the trial.

7. He cites in support of the first ground of appeal the case of Leung Sun Wah v The Queen reported in Criminal Appeal No. 923 of 1976. It is a case decided by Mr. Justice Morley-John on appeal from a magistrate's decision. The circumstances of Leung's case are very similar to the present one. The defence in that case was also one of outright denial of possession by the Defendant. The difference is that in Leung's case the quantity of drugs found on the accused was not sufficient to set the presumption in Section 46 of the Dangerous Drugs Ordinance in operation. It was the sheer number of the packets found in the Defendant's possession that caused Section 46 to apply. There are further distinguishing features in that case in that there was nothing on record to show the effect and operation of Section 46 of the Dangerous Drugs Ordinance had been explained or ever mentioned to the Defendant or to show that the effect of Section 46 being explained to the Defendant. Further, at the trial, there was evidence from the prosecution case that upon his arrest and later at the police station the Defendant stated that he had bought those drugs for his own consumption and that the trial magistrate said that had the Defendant stated that he had the articles in his possession for his own consumption he would have believed him, bearing in mind the small quantity of heroin involved. For this reason Mr. Justice Morley-John allowed the appeal, quashed the conviction of possession for the purpose of unlawful trafficking and substituted therefore a conviction of simple possession of dangerous drugs.

8. In the course of his judgment Mr. Justice Morley-John said:-

"Counsel for the appellant contended that the learned magistrate should have considered the evidence of the police officer which he apparently accepted that upon his arrest and later at the police station the appellant stated that he had bought these drugs for his own consumption as evidence to rebut the presumption that the accused was in possession of the drugs for the purposes of unlawful trafficking. However, as I have stated, it is for the appellant in this case to rebut this presumption. It was open to the appellant on the question of presumptions to adopt the evidence of the police constable that he had said that he had the drugs for his own consumption. In fact, from the record there is no mention that any reference was ever made to any statutory presumptions. In his statement of findings the learned magistrate said that had the appellant stated that he had the articles in his possession for his own consumption he would have believed him bearing in mind the small quantity of heroin involved."

In page 4 of his judgment, after referring to the small quantity of drugs so found, he further said as follows:-

"Be that as it may, as the learned magistrate has stated, the appellant in no way attempted to rebut the presumption. However, the learned magistrate did not explain fully and carefully to the appellant the nature and the effect of the statutory presumption. In fact, as I have already said, according to the record the question of presumption was never mentioned. Again quoting from the judgment of Mr. Justice Huggins, in the case of Cheng Gee it would have been difficult for the appellant to swear that the drugs were planted on him and at the same time to say that if he was in possession unlawfully he had them for his own consumption. Nevertheless the appellant was not warned that the possibility that the presumption would result in his conviction, and had he been warned he might have put his case differently."

He also cited another case which was decided by the learned Chief Justice in 1972, the case of Yip Choi Hoi v Reg. reported in Criminal Appeal No. 167 of 1972. In that case the learned Chief Justice said:-

"When an accused person is unrepresented it is in my view equally necessary that the magistrate should explain to the accused the type and quality of evidence which, if believed, is capable of rebutting that presumption. In my judgment it is not only necessary in the interest of justice that such an explanation should be given to the accused but also that the record of the magistrate should state clearly that this has been so given to him. In this case there is certainly nothing on the record to show that the nature and effect of the presumption was at any time explained to the appellant. On the other hand having regard to the nature of the defence raised, a total denial of the possession of the drugs, I am satisfied that this apparent failure of the magistrate to explain the nature of the effect of the statutory presumption has not resulted in any injustice to the appellant in this case."

However, the learned Chief Justice said later as follows:-

"But quite apart from the defence and, perhaps, and obviously untruthful defence, which the accused person puts forward when totally denying possession there may be factors as in the present case, inherent in, and disclosed by, the evidence given by the prosecution itself which raised the possibility, or even a probability, that the accused was in fact in possession of the drugs for his own use."

9. It is of interest to observe that in both cases before Mr. Justice Morley-John and that before the learned Chief Justice there was no record that the statutory presumption of Section 46 of the Dangerous Drugs Ordinance had ever been mentioned let alone explained to the Defendant. Again, in both cases the prosecution evidence was such that the Defendants were alleged to have said that the drugs were for their own consumption even though such a line was clearly inconsistent with the defence that the drugs were never in their possession at all. It is, therefore, hardly surprising that the two learned judges sitting in the Court of Appeal came to their conclusions as aforesaid.

10. The records in the present case are quite different. First of all the effect of the presumption was explained to the Appellant at the close of the prosecution case. There is no evidence adduced by the prosecution that the Appellant, at any stage, stated that the drugs were for his consumption. The defence of the Appellant in the court below had been consistently one of outright denial of possession. As to the type and quality of evidence to be explained to the Appellant as stated in the learned Chief Justice's dictum, the quality of the evidence was certainly explained to the Appellant by telling him that the burden to rebut was on the balance of probability. Indeed, there was no record as to the type of evidence which could rebut the presumption having been mentioned by the learned magistrate at the trial.

11. Referring to the term "the type of evidence" as mentioned by the learned Chief Justice I am of the opinion that the learned magistrate need say no more to the Appellant than that evidence is required to show that the drugs he possessed were not for the purpose of unlawful trafficking. It is hardly the function of a magistrate to give an exhaustive list of evidence that may be adduced to rebut the presumption. Evidence in defence is peculiarly within the knowledge of the Appellant and indeed the prerogative of the Appellant. It would be improper for any magistrate to suggest and advise on the lines of defence by giving the nature of evidence to be adduced by the accused or even to suggest the nature of evidence to be given by him. Further until such time that shorthand reporters are assigned to magisterial courts at the trial I do not expect a magistrate to record in detail every single word of his explanation to an accused person or be it the essential features of his explanation should be recorded. Section 34 of the Magistrates Ordinance requires the magistrate only to take a full minute so far as circumstances permit of the matters as follows namely:-

12. Learned counsel for the Appellant also argued that the explanation so made was not made in time. He contends that the explanation of the presumption should have been made earlier and made at the commencement of the trial. In certain cases there may be reason to suggest that an appropriate moment to explain the presumpion should be made at the beginning of the trial. This will be especially so if the prosecution opens the case and that the evidence to be adduced is known to the magistrate. However, in the present case the defence is one of outright denial of possession. It is confirmed by the plea at the commencement of the trial. It has been argued that on record the prosecution evidence was such that the 1st prosecution witness said as follows:-

"I asked him if he got anything to say. The defendant told me that he was not trafficking in dangerous drugs."

But the words "not trafficking in dangerous drugs" are general words. They are not inconsistent with the defence that he was not in possession of dangerous drugs. In any event such evidence was given in the middle of the trial. It would be improper for the magistrate to suggest there and then to the appellant that he could switch his defence to one of simple possession but not for trafficking. It is quite improper for any magistrate to interfere or influence a defence case. Had the magistrate at the commencement of the trial told the appellant of the presumption and also that he could adopt the defence of simple possession without unlawful trafficking it would be a good ground for appeal. For these reasons I am of the opinion that the first ground of appeal must fail.

13. The case of Szeto Ming v the Queen reported in 1978 H.K. Law Report page 61 has been cited in support of the second ground of appeal. In that case the right to cross-examine and the right to call for the record of evidence given by the same witness at a previous abortive trial was not explained to the Appellant in the court below by the learned magistrate who conducted the second trial. Further, the fact that the witness made a statement to the police totally inconsistent with the evidence she gave at the second trial was never disclosed to the learned magistrate. These special facts prompted my brother O'Connor to say in his judgment on appeal as follows:-

"This discrepancy might possibly have been cleared up if the matter had been probed before the trial magistrate. Of course what was said before the first magistrate was not in evidence before the trial magistrate though it was part of the case file, but in my opinion the trial magistrate ought to have assisted the appellant to conduct his case, at least to the extent of advising him that he could put her previous evidence to her and if necessary prove it in evidence. In R. v Page Maule J. said 'The fiction of law in criminal cases is, that the judge is counsel for the prisoner'. I consider those words are still applicable today in a case where an accused person is unrepresented. It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as necessary for the proper conduct of his defence. R. v Doubleday, R. v Barker and see R. v Suen Chuen. Admittedly a judge or magistrate must be careful not to step into the arena, but that does not mean that he is prohibited from ensuring that any defence a defendant might have or any point he had to make is fully brought out."

In Doubleday's case reported in Vol. 12 Criminal Appeal Reports page 240 the Lord Chief Justice said:-

"We cannot read the summing up without realising that as much care was not taken on behalf of the prisoner as if she had been defended; several questions were not put which would undoubtedly have been put by counsel on her bahalf. We are not in any way blaming the counsel for the prosecution nor the Chairman, but it was desirable in such a case to keep in mind that no one was appearing for the appellant, and it was therefore the duty of the presiding judge to protect her interests so far as possible. Though minor criticisms can be made on the trial, there is not enough to induce us to quash the conviction."

14. In Barker's case reported in Vol. 20 Criminal Appeal Reports page 70, the learned Chief Justice said:-

"Appellant was undefended, and when he was invited to question the witnesses he began to make a statement, and was told that he must do that later on. No help was given him in formulating questions. He was not invited to cross-examine the detective. When the case for the prosecution was closed he was told that he could give evidence, but when he proposed to ask the prosecutrix a question he was informed that he was too late - 'he had missed his chance.' In the summing up the learned Deputy-Chairman omitted to tell the jury that a fraudulent intent was the essence of the crime charged. Yet the defence suggested was that there was no fraud on the appellant's part, as he had been exchanging horses for the prosecutrix for a long time. The learned Deputy-Chairman added: 'There is no answer to the charge in this case - you can have no doubt about your verdict'."

For this reason the learned Chief Justice quashed the conviction.

15. In the case of Suen Chuen and another v the Queen reported in 1963 H.K.L.R. page 630, Mr. Justice Blair-Kerr at 651 said as follows:-

16. Taking all these dicta which have fallen from the Courts of Appeal from time to time in England as well as in Hong Kong I come to the conclusion that generally the trial magistrate's duty in assisting an unrepresented accused does not go beyond advising him of his legal rights in matters of procedure and in law. In appropriate circumstances it may be desirable for the magistrate or the trial judge to ask witnesses questions not so much to assist the accused but as to ascertain the truth and to ensure that justice is done. Further his duty may include some assistance to the accused by asking a few pertinent questions if such questions were apparently necessary. There is no duty on the part of the magistrate to conduct the defence as such or take over the cross-examination from the accused.

17. In the present appeal the learned magistrate had advised the Appellant of his rights to cross-examine witnesses, the purpose of cross-examination and explained to him the provisions of Section 46 of the Dangerous Drugs Ordinance. The Appellant had been repeatedly reminded to tell his own case. The magistrate's failure to ask questions as to why the second prosecution witness did not see the drugs until the latter was in the police station or that at the time of the arrest the Appellant was handling a trolley had little bearing in the fact whether the Appellant was in possession of the drugs or that his possession of the drugs was for the purpose of unlawful trafficking. The defence was a denial of possession and that the Appellant was framed. By his cross-examination the Appellant put forward two ways as to how the drugs were planted on him. He failed to substantiate either of it in his own evidence despite repeated reminder to state his own case. In any event the Appellant's allegation of the police method in framing him was inconsistent. The facts of the present case are materially different from the case before my brother O'Connor as well as the cases cited in his judgment. There was no duty for the magistrate to suggest to the Appellant in what way the Appellant should make his allegations or to suggest to him the type of evidence he should give in his defence. Otherwise the magistrate would be exceeding his duty indeed in the administration of justice. There is no valid criticism as to conduct of the magistrate in respect of the trial. The second ground of the appeal also fails and, in the circumstances, the appeal against conviction must be dismissed. 

Representation:

Mr. Y.C. Mok (Director of Legal Aid) for appellant

Mr. N.A.C. Aikin, Crown Counsel, for respondent