THE QUEEN v. CHAN MING LUEN

 IN THE COURT OF APPEAL

1986, No. 598
(Criminal)

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J U D G N E N T

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Headnote: Inadvertent omission of evidence by Prosecution: Discretion to call at close of final address in District Court: Difference between that stage and jury trial.

Si1ke, J.A.

1. This is the judgment of the Court.

2. The Applicant, Chan Ming Luen, was convicted, after trial, of possession of dangerous drugs for the purpose of unlawful trafficking. The mixture set out in the Particulars of Charge was 712.39 grammes containing 94.47 grammes of salts of esters of morphine. He had originally been charged jointly with one Ngan Chun Chuhis girlfriend. When the trial proper commenced, the prosecution, offered no evidence against her and she was acquitted.

3. The offence had taken place on the 24th May 1986. The Applicant first appeared in the District Court on the 7th July when he pleaded Not Guilty. The trial was adjourned to the Legal Aid running list. He was refused bail. 0n the 8th September the hearing has fixed as the 3rd November, and the trial itself commenced on that day. In passing, for myself, this seems on unusually long period for a charge in the District Court to take to come to trial.

4. The prosecution evidence was that Wong Hon Choi vas the owner of the premises at 1423B, Sau Yuen House. He handed it over, together with two sets of keys, to the Applicant. The Applicant was looking after the premises for Mr. Wong who was otherwise engaged.

5. At about 10:45 in the morning of the 24th May, the police laid an ambush. At about 5:00 that evening, the Applicant and his girlfriend were seen in the car park. They were apprehended there and on the Applicant was found a bunch of keys. Keys were also found upon the girlfriend.

6. When asked to what premises those keys related, the Applicant said that some of them were for his car and some of them were for his premises in Wong Tai Sin. The police were skeptical. They brought him back into Sau Yuen House. They went up to the top, the 18th floor, tested all the doors on that floor, tested doors on the 17th, 16th and 15th floors. All without success. They then came to the 14th floor the keys opened the two doors of the apartment l423B.

7. They searched that premises. They found two shoe boxes near the television set. These contained drugs. There were also found a number of other items which were drug related such as 750 plastic packets and two sets of scales, one being electronic. Further, they found property of' the Applicant which clearly tied him in as an occupant of the premises. That aspect was not contested at trial.

8. When the prosecution's case had concluded no submission of no case was made by Mr. Cheng Huan, who appeared for the Applicant here and below. The Applicant came to the box and gave evidence. He called a witness to say that the girl also had keys to that premises.

9. Counsel for the Crown made his final address. Mr. Cheng Huan in his final address raised for the first time a lacunae which he said existed in the Crown's case. This related to the non-introduction in evidence of the Chemist Certificate and the non-calling of' the D.D.P.C., who was the person who would normally produce such certificate as well as speak to the chain of evidence concerning the drugs. The chain had stopped in the trial proper at the point when the seizing police constable handed over the drugs to the D.D.P.C.

10. There is, however, a background. When the trial commenced, it has been agreed, though there is not a full record of that1which transpired, that there be a' "paper trial" in the "sense that all the evidence would be agreed with one prosecution witness only being tendered for the purpose of cross-examination. The trial judge rejected that agreement and, with respect to him, quite rightly so. Paper trials can be frequently unsatisfactory. But from this there was a clear indication that there was no contest in relation to the fact of the finding of the dangerous drugs on the premises nor of their being taken, in the ordinary course, to the Government chemist, being certified and returned to proper custody.

11. In the trial proper, the Chemist Certificate had made an appearance. It had been handed over to the Court, and then handed back to Counsel then appearing for the Crown for the purpose of collating the exhibit officer's evidence with the contents of the Certificate. This was done during a short adjournment granted for the purpose. Again there is no proper record of this. The Certificate remained in the hands of Crown counsel.

12. Following on Mr. Cheng Huan's submission, there was an application by Crown counsel that he be permitted to call the missing evidence even though the defence case had closed. There was an adjournment. After argument the submission was accepted by the trial judge.

13. Mr. Cheng Huan's main ground of appeal is that that admission was wrong.

14. After the judge had ruled, Mr. Cheng Huan informed the Court that he was under instructions that, if the ruling was that the evidence could be called, he was to withdraw. He did.

15. The Applicant was then given very opportunity to obtain further legal representation to re-call the witnesses who had given evidence and to give further evidence himself if he so wished. He rejected all those offers.

16. The evidence was called. The D.D.P.C. came to the box, spoke to the chain of evidence and produced the Certificate.

17. The point taken here is first, that, this was much too late in the proceedings for evidence to be called, by the prosecution. Second, while it was conceded that the trial judge had a discretion, it is argued that he did not exercise that discretion judicially.

18. On the first, Mr. Cheng Huan has attempted to equate the stage a District Court trial reaches when addresses are complete with the conclusion of the summing up in a jury trial. It is quite clear from Hui Kay Yuen⁽¹⁾ that that is not a sustainable proposition.  There, the same proposition had been advanced.

19. The Court, the judgment of which was delivered by McMullin, v.P. considered the authorities of both Owen⁽²⁾. Wilson⁽³⁾ and Flynn(4) and came to this conclusion:

"It is often difficult in endeavouring to draw a parallel between the situation of a judge sitting alone as judge of fact and law and a judge sitting with a jury to apply evidential rules to the former situation which have been formulated to deal with the latter. Giving a common sense gloss to this distinctly theoretical dichotomy, we think it would be best to regard the judge in the present case, as in a sense not yet having begun to sum-up to himself the issues in the case so that he should be properly regarded in his jury function as a jury which had not yet received the proper instruction and had not retired to consider its verdict."

20. We have also been referred to The Queen v. Leung Ch un Pui⁽⁵⁾ which seems to take the same view although Hui Kay Yuen⁽¹⁾ is not mentioned. We have no hesitation in adopting that which has been said in Hui Kay Yuen⁽¹⁾ as setting out the correct position.

21. On the second point, Mr. Cheng Huan, places great: reliance on Scott⁽⁶⁾. That was a case which concerned matters arising ex improviso and the capability of reasonably foreseeing that evidence which should be called by the prosecution as a major portion of their case is called at the proper time and is not sought to be introduced in rebuttal.

22. This is not the case here. Clearly, the Crown were fully aware of the necessity to call this evidence. It was simply a matter of an inadvertent failure to do so. It was a matter of "forgetting" and not of matters arising ex improviso.

23. In the ruling, which Mr. Cheng Huan criticizes 1n the alternative by saying that even if the judge were right in exercising his discretion he did so for the wrong reason, the trial judge said:

" It is an unusual and rare application which deserves much consideration in deciding whether or not the interests of justice would be served in granting the application.

The evidence sought to be introduced is formal, and neither the Court, the Crown nor the Defendant would be taken by surprise at its content."

24. The main criticism of that particular passage is that the judge appears to be making reference only to the Chemist Certificate - and categorising this as "formal" and not to that necessary additional evidence of the D.D.P.C ..  In the result what happened was that the D.D.P.C; was called and we think that, when the trial judge made reference to "formal" evidence and to the (Government Chemist Certificate, this was a form of shorthand reference to the whole of the evidence which was subsequently produced.

25. We entirely accept that the Crown cannot re-open its case, in the sense of having another bite of the cherry, when it has failed to produce available evidence it should have known was necessary for the proving of that case. Paragraph 4-414 of the 42nd Edition of Archbold reads:

"From time to time, evidence of a formal nature, or clearly not capable of being the subject of dispute, which should have been adduced before the prosecution closed its case, is overlooked and submissions of no case to answer are accordingly made. No clear rule has emerged as to the extent of the judge's discretion to allow the Crown to repair the omission. It is submitted that the balance of authority in the cases cited below indicates that the discretion is confined to evidence of a formal, technical or non-contentious nature which mayor may not be a matter of substance. The discretion most certainly does not extend to permitting the prosecution virtually to begin its case all over again,……… "

26. Mr. Cheng Huan has stressed that in that paragraph "the cases cited below" do not contain Scott⁽⁶⁾ and, further, that it is simply an editorial opinion. It is, in our judgment, an editorial opinion which has weight and which, with respect, also has a great deal of commonsense.

27. Mr. Cheng Huan further submits that in coming to his conclusion, the trial judge should not have taken into consideration the original agreement on a paper trial. We do not agree. This was a factor which clearly and properly played its part in the exercise of the trial judge's undoubted discretion.

8. He finally suggests that the trial judge placed too great a reliance of Chan So v. The Queen⁽⁷⁾, a Magisterial Appeal heard by Huggins, J. (as he then was). There a Chemist Certificate had been introduced at trial. It was without signature. No one had noticed this. It was only when the trial magistrate was making out his Reasons for Verdict that the lack of signature was discovered and this was drawn by him to the attention of the Appellate Court. Huggins, J. allowed the evidence of the Chemist to be called at the hearing of the appeal. He called it a very rare and unusual case. There was some assistance which the trial judge could derive from Chan So⁽⁷⁾ and it cannot be said that he was wrong to refer to it. He did not found his ruling upon it.

29. While the evidence was not in its strict sense formal, it was evidence which was not the subject of dispute, though we note there was some cross-examination as to a difference between the quantity in the charge and the quantity as referred to by the sergeant in his evidence.

30. It was clearly evidence which was overlooked in the unusual circumstances of this case and we think its admission to have been proper. We stress the rarity of those circumstances.

31. The fourth ground of appeal of the case and it is submitted that, in his somewhat cursory judgment – which made no reference at all to late calling of evidence – the trial judge was in error when he said:

"There is the suggestion that the. drugs may have been the property of P.W.1 or D2. There is no evidence of this." (Emphasis supplied)

32. Factually, he was quite correct. There was no evidence of possession by either nor was it put to P.W.I that the drugs were his. He said that he had left no property on the premises. There was a somewhat vague implication in the evidence of the Applicant at trial that the drugs might possibly be those of D2 - the girlfriend who was also a drug addict - but that is as far as it went.

33. Once the Crown's case had been completed by the proper admission of the evidence of the D.D.P.C. and the production of the Chemist Certificate, we do not think that the judge was in any way in error in disbelieving the Applicant and coming to the conclusion that guilt had been proved.

34. The application for leave to appeal against conviction is refused.

1 (1982) Cr. App. R.

2 (1952) 36 Cr. App. R. 16

3 (1957) 41 Cr. App. R. 226

4 (1958) 42 Cr. App. R. 15

5 [1987] H.K.L.R. 50

6 [1984] 79 Cr. App. R. 49

7 Criminal Appeal No. 663 of 1972 (unreported)