R. v. LAM SHUN MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 753 of 1995

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J U D G M E N T

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1. The appellant in this case faced three charges, of possession of dangerous drugs, possession of an offensive weapon and possession of apparatus fit for smoking of dangerous drugs. He was convicted after trial and now appeals against those convictions.

2. The appellant was unrepresented at the trial. The prosecution case was based on evidence given by the arresting police officers and included in their evidence were claims that the appellant had made verbal admissions to possession of the dangerous drugs, the offensive of weapon and the apparatus.

3. The prosecution witnesses were not cross-examined about the voluntariness of those statements and it was not until the appellant came to give evidence on his own behalf that the allegations came to light. The magistrate was being placed in some difficulties in that the allegations had not been put to the prosecution witnesses. He allowed the trial to continue and proceeded to convict. The fair approach in my view would have been to recall the prosecution witnesses in the light of the allegations and allow the appellant to put his case to them. It might be that once those allegations had been put the magistrate would have come to a different view about the evidence of confessions in particular and as to credibility in general. I therefore think that the matter ought to be retried. I allowed the appeal against conviction on the three charges and ordered that the three charges be retried before a different magistrate.