THE QUEEN v. LAM CHI WAI

IN THE COURT OF APPEAL

1987, No. 296
(Criminal)

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J U D G M E N T

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Silke, V-P.:

1. This is an unusual appeal. On the 13th November 1985, the Appellant was convicted on one count of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to three years’ imprisonment.

2. The offence was said to have taken place, on the 14th August 1985, outside No.1 Yue Man Square in Kowloon. The quantity of the mixture was said to be 60 grammes, containing 12.02 grammes of salts of esters of morphine.

3. The basic evidence of the finding of the drugs upon the Appellant came from two police constables.  A third police constable who was present at the scene was not called in evidence. The Appellant was unrepresented and he gave no evidence.

4. He filed an Application for leave to Appeal against conviction on the 12th December 1985. That Application was heard on the 1st May 1986 when he was represented by competent counsel. Its basis was that he had been denied legal representation, that he had asked for a number of adjournments and that he had been refused those adjournments for reasons then given by the trial judge. The application was dismissed.

5. On the 19th February 1987, the Director of Public Prosecutions wrote to the Appellant who was then serving his sentence informing him that investigations had been made into the background of the offence and into the police officers concerned which apparently showed that there had been a "liaison" between the police constable who was involved in the arrest and the wife of the Appellant. This was the police constable who was not called at the trial.

6. On the 2nd ApriI 1987, the Appellant petitioned His Excellency the Governor. The Petition, we are told today by Mr. Bruce who appears in this Court for the Crown, was supported by the Crown. The Governor referred the matter to the Court of Appeal under the provision of section 83P(I)(a) of the Criminal Procedure Ordinance for this Court to consider the matter afresh as an appeal.

7. The terms of the Reference are:

"The case specified hereinabove is referred to the Court of Appeal pursuant to the provisions of section 83P(I)(a) of the Criminal Procedure Ordinance, Cap.221 for the Court of Appeal to consider the case as an appeal to the Court of Appeal by LAM Chi-wai including whether to receive the evidence of the wife of the said LAM Chi-wai and any other evidence which is considered necessary and thereafter to decide whether or not the conviction of the said LAM Chi-wai should stand or be varied in any, and if so, what manner."

8. For myself, I would interpolate here that while the terms of the Reference clearly indicate to this Court the reasons why it was thought proper to refer the matter to it, nevertheless, it might be argued that that passage which refers to the consideration of-the reception of the fresh evidence of the wife of Lam Chi Wai, and any other fresh evidence could, to a limited extent, impinge upon the Court's consideration of whether or not to receive fresh evidence should there be at the hearing an application by counsel representing the Appellant for the reception of fresh evidence under the provision of section 83V of, the Criminal Procedure Ordinance. But that is entirely by the way. It is a matter which perhaps might be considered as to the terms of future References.

9. Today, Mr. Bruce has very helpfully brought to our attention certain matters. These are assertions which have been made by the wife of the Appellant and assertions which have been made by the police constable concerned. The wife has said that there was a sexual liaison between the constable and herself and that the drugs arrest was a frame-up arranged between them. The constable says that there was such a liaison but does not accept that there was a planned conspiracy between them.

10. In the ordinary course, this Court would have expected this kind of fresh evidence to be on affidavits placed before it for its consideration as to whether or not it would, within the terms of section 83V, receive it. But the line which has been taken, and if I may say so quite properly taken, by Mr. Bruce is that the Crown while not accepting the truth of the stories, were not aware of any of this at the time of the trial; that had they been aware, they would certainly have brought them to the attention of the defence and probably that of the trial judge; that they are serious matters which should properly have been before the trial court for its consideration; that had they been, it might be, that the trial judge would have taken a different view.

11. The net is that the Appellant had been deprived of the opportunity of bringing these matters to the knowledge of the judge or to the other Division of this Court through nobody's fault. They were not known to the Crown. They were apparently not known to the Appellant himself until he received the communication from the Director of Public Prosecution

12. In those circumstances, it would be unsafe'and unsatisfactory to allow this conviction to stand.

13. The Crown do not seek a re-trial in the circumstances. Further the Appellant-is presently in jail custody on another offence. The conviction is therefore quashed and the sentence set aside