Leung Yin v. The Queen
|
CACC001303/1977
-----------------
----------------- Coram: Huggins, J.A. Date of Judgment: 12th January 1978. ----------------- JUDGMENT ----------------- 1. The Appellant was charged before the magistrate with possession of dangerous drugs for the purpose of unlawful trafficking. The police went to the Cheung Sha Wan Abattoir. There they found the Appellant and searched him. As they approached he appeared to throw something away, but whatever it was was never found. On his person they found a metal cigarette box containing fifteen packets of what were proved to be dangerous drugs and the large sum, in cash, of $1,515.00. An analysis of the drugs showed that they were 6.1 grammes of a mixture containing 2.1 grammes of diacetylmorphine hydrochloride. 2. The Appellant was alleged to have made a confession. Objection was taken to the admission of that confession in evidence, but the Appellant elected not to give evidence upon the issue of admissibility. In his ruling on admissibility the learned magistrate reviewed the evidence (including a medical certificate which was produced on behalf of the Appellant to show that he had slight injuries) and pointed out that the medical report itself said that the injuries could have been self inflicted, and he concluded "I must therefore admit the statement in evidence". Thereafter the Appellant himself did give evidence. 3. The learned magistrate reviewed the whole of the evidence and found the Appellant guilty. After his review of the evidence relating to the confession the magistrate said:
4. Before me the Appellant has alleged that there was no evidence upon which to convict him, but his argument was in effect that the witnesses were not to be believed. Nothing which he has said persuades me that the conviction was wrong. I have, however, felt bound to raise with counsel for the Crown a question based upon the two passages that I have cited from the ruling on admissibility of the confession and from the statement of findings. Mr. Hindle fairly and rightly concedes that, on the face of it, there was a misdirection as to the burden of proof: the facts that the Appellant did not give evidence and that the injuries found on him could have been self inflicted were no reason why the magistrate should believe the police officers. The magistrate said nothing about the inherent credibility of those witnesses. Mr. Hindle has argued very forcibly that the learned magistrate merely used inapt words in his two rulings and asked me to say that the magistrate would not have made an error in such a matter. An appellate court is always loth to allow a conviction on what might be a mere matter of words, but this is a retrial upon the record as it stands and on the face of the record I find myself unable to say anything but that there has been a fundamental error. Mr. Hindle then, of course, submits that, even if the confession were wrongly admitted in evidence, there was ample evidence to justify the conviction. It is true that there would have been ample evidence without the confession, but the question I have to ask is whether a conviction would have been inevitable without the confession. It is submitted that the magistrate would undoubtedly have come to the same conclusion. I agree that it is very probable that he would have come to the same conclusion, but I think it is also just possible that he might have come to a different one and it would not be right for me to substitute my assessment of the evidence. With reluctance, therefore, I feel bound to allow this appeal. The conviction is quashed and the sentence set aside. 12th January 1978. Representation: |