THE QUEEN v. LEE HAR

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1542 OF 1989

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JUDGMENT

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Fuad, V.-P.:

1. On 24th November last year the appellant, Lee Har, was convicted by Mr. B.R. Paterson-Todd in the Magistrates Court of the offence of unlawfully trafficking in dangerous drugs contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. The quantity of drugs involved was 2.68 grammes of a mixture containing 0.19 grammes of salts of esters of morphine. The appellant was sentenced to 2 1/2 years' imprisonment and now appeals against conviction and sentence.

2. In his Statement of Findings, the magistrate reviewed the evidence and accepted that of the two police officers who gave evidence for the prosecution. He rejected the evidence of the appellant and of a man called Lam Fat Wah who gave evidence in support of his defence. The magistrate recorded that he was satisfied beyond reasonable doubt that the appellant had sold a dangerous drugs to Lam Fat Wah. Lam had pleaded guilty earlier before Mr. Paterson-Todd to the offence of possessing dangerous drugs and, as I have said, supported the appellant's defence when he denied having sold drugs to Lam.

3. Mr. Percy, who appears for the appellant and did not appear in the Court below, submits that the principle that justice must not only be done but must manifestly be seen to be done had not been observed in view of the fact that Mr. Paterson-Todd had already convicted Lam, who was the 2nd defendant on the Charge Sheet, on his own plea of guilty upon "brief facts" which had been disclosed to him, and had proceeded to sentence Lam after having learned of his previous record. The appellant had decided to call Lam as his witness and, Mr. Percy argued, no impartial assessment of his credibility and reliability could have been made in the light of Mr. Peterson-Todd's earlier treatment of Lam.

4. Mr. Percy suggests that since the appellant was unrepresented it was the duty of the magistrate, before he embarked upon the hearing, to enquire from him whether or not he intended to call the 2nd defendant as a witness and if so, he should have disqualified himself from hearing the case.

5. I am not persuaded that these submissions are well founded. I think that it would be putting an unnecessary burden on magistrates if they were bound to inquire, in each case where a co-accused has pleaded guilty, whether or not an accused still to be tried intends to call his co-accused as a witness. It may be that at the beginning of a trial an accused person will not have, decided what witnesses he intends to call. He may wish to wait until he has heard what the prosecution witnesses have to say.

6. There are no merits in the appeal either against conviction or sentence. The sentence imposed upon the appellant, in relation to the quantity of drugs involved was well within the sentencing guidelines established in Hong Kong. The appellant has a lengthy record of 28 previous convictions, no less than 18 of which are drug-related. For these reasons, the appeal is dismissed both as against conviction and sentence.