THE QUEEN v. FUNG WAI-CHUNG

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H E A D N O T E

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Possession of dangerous drugs for unlawful trafficking - plea of guilty to simple possession not accepted by prosecution - not admission under section 65C - defendant entitled to raise defence of non-possession.

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J U D G M E N T

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1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

2. When the charge was read to him, he replied "I deny, but I admit Simple Possession". This plead was not accepted by the Crown and the trial proceeded.

3. The arresting officer gave evidence that he saw the appellant acting suspiciously, searched him and found the drugs. The appellant, who was not represented, the cross-examined the police constable and suggested that the drugs were not found in his possession.

4. The magistrate disallowed this line of cross-examination, on the grounds that the appellant had already, by his plea, admitted possession. The appellant said that the police constable had promised not to charge him with possession for unlawful trafficking.

5. Mr Murray, who now appears for the appellant, prays in aid the following passage in Archbold, 43rd Ed., paragraph 4-60 :-

"There can only be one plea to a count in respect of which a defendant is put in charge of a jury. Thus if a defendant who is charged with wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 pleads 'Not Guilty but Guilty to unlawful wounding' and the prosecution or the judge are unwilling that that plea should be accepted, the plea to the count is entered as one of Not Guilty and the plea of Guilty to unlawful wounding must be treated as having been withdrawn and as a nullity. Where in such circumstances after the jury had returned a general verdict of Not Guilty on the count the judge treated the plea of 'Guilty to unlawful wounding’ as still effective and sentenced the defendant on the basis of it, it was held that the conviction must be quashed: R, v. Hazeltine [1967]2 Q.B. 857; 51 Cr. App. R. 351, applied in R. v. Thompson [1980] Crim. LR. 188, C.A."

6. As counsel counsel points out, it is not possible for an unrepresented defendant to approach the prosecutor before the case is called and ask him if he will accept a guilty plea to the lesser offence. The best he can do is to try to plea bargain when the charge is put, to him.

7. If his plea is not accepted, a plea of not guilty should be entered and the trial should proceed. The defendant is then entitled to raise any defence that is open to him, including a denial of possession. That, of course, is subject to any admission under section 65C of the Criminal Procedure Ordinance, Cap. 221.

8. Counsel for the crown submits that the plea should be treated as an admission under that section. I do not agree. In A.G. v. Wong Pang (1979) H.K.L.R. 61 it was held by the Court of Appeal that the section is procedural and its purpose is to provide a simplified means of producing evidence before the court.

9. The same court went further in R.-v. Cheng Chiu (1980) H.K.L.R. 50, when Roberts, C.J. said that the provisions of the section must be formally invoked and pointed out that the court has a discretion whether or not to permit facts to be admitted.

10. It would be quite wrong to pin down an unrepresented defendant in this way. If the prosecution does not accept the plea, the whole matter is put in issue and the prosecution must take the risk of failing to prove every ingredient of the charge.

11. The appeal is allowed and the conviction quashed. The case is remitted for retrial by another magistrate.