THE QUEEN v. LEE HUNG

M.A. 381 of 1989

Headnote

JUDICIAL NOTICE - defendant not given opportunity to rebut

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 381 OF 1989

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J U D G M E N T

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1. The appellant was arrested on the 3rd of February 1989, after being found on possession of three plastic bags of heroin, the mixture containing 27.69 grammes with the weight of 1.31 grammes of salts of esters of morphine. Before the magistrate, Mr. A. Crawshaw, he admitted to being in possession of the drugs but denied the charge of possession for the purpose of unlawful trafficking. He gave evidence in an attempt to rebut the presumption out was convicted as charged and sentenced to 3 years' imprisonment. He now appeals against conviction and sentence.

2. The appellant is aged 57 (not 37 as appears in tire statement of findings). It is not disputed that he is, as discribed by the magistrate, a hard-core addict, having been so for over 30 years.

3. His evidence was that he had been at the time of the trial in regular employment with a barber shop for 10 years. This does not appear to have been challenged at the trial. He stated that he had purchased a larger supply of drugs than normal from his regular supplier "Tai Tau" Bing on the 20th of the last lunar month having been told by Bing that he was leaving for China over the Chinese New Year period. It was suggested by Bing to the appellant that he bought the larger supply to cover his needs over this period. He gave evidence to the effect that it was not possible for him to buy from any supplier, that he had to be introduced to the supplier through Do Yau.

4. When considering the explanation that he had bought the larger supply because of Bing's pending departure for China, the magistrate had this to say in his statement of findings:-

"I found this a rather lame excuse. My experience is that there is never any want of a supplier all the year round."

5. As there was no evidence before him to this effect he was taxing judicial notice of what he perceived to be the position relating to drug supplies in the Kowloon area. Was he in the circumstances right to do so? When considering the question of judicial notice, O'Connor J. in R V Chan Kin San and Chan Chun Ho MCA 122/1988 at p. 3 stated:-

"Magistrates may take judicial notice of matters within the area that are notorious. That is which are known to the ordinary, informed person within that area. That does not mean that a matter of which judicial notice is taken, is conclusively proved. It might be disputed by calling evidence to the contrary. See Wigmore, para. 2567, 3rd Edition."

6. The ordinary informed person in the Kowloon area would be aware that drugs can be purchased in the streets and parks of that area and the magistrate would certainly be entitled to take judicial notice of this. Such persons might not however be aware of any fluctuations in supply which might occur from time to time and in particular during the Chinese New Year holiday period. It is a fact, of which the magistrate could have taken judicial notice, that hundreds of thousands of residents leave Hong Kong during this holiday period and it is a distinct possibility that a proportion of those persons would be drug traffickers.

7. In my view if justice is seemed to be done to the appellant in this matter, he should have been advised by the magistrate of his perosnal views on the heroin supply situation and given the opportunity of disproving this belief by evidence to the contrary. If this course of action had been pursued, the appellant might possibly have been able to convince the magistrate on the balance of probabilities that over the Chinese New Year period he did have the need for some additional supplies.

8. In the circumstances, I propose to allow the appeal against conviction and substitute a conviction for simple possession. As the appellant has already served 7 months imprisonment, the appeal against sentence is allowed so as to enable the appellant to be discharged forthwith.