HKSAR v. FONG CHI SUN

HCMA232/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.232 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of two offences : trafficking in dangerous drugs and possession of dangerous drugs, on 2nd February 1998, for which he was sentenced to a total of two years' imprisonment. He now appeals against the convictions.

2. The first ground of appeal raised by Mr Richard Wong, for the Appellant, is that the learned trial Magistrate in refusing the application by the Duty Lawyer for the case to be stood down so that another Duty Lawyer could take over the case was acting wrongly. The basis for the application by the Duty Lawyer for making the application was that a conflict of interest had arisen for which he wanted to be discharged from the case. No details were gone into as regards what the conflict of interest was. In the event, his application to discharge himself was granted by the trial Magistrate and he was allowed to leave the case.

3. His other application, namely, for the case to be stood down so that another Duty Lawyer could take over the case was refused by the learned Magistrate. The learned Magistrate gave no reasons for refusing the application but seemed to imply, in what he said to the Appellant, that because of certain instructions which the Appellant had given to the Duty Lawyer, a conflict of interest had arisen. This, of course, is incorrect because we do not know the reason for the conflict of interest, and it was wrong of the Magistrate to have imputed blame for the conflict arising onto the Appellant.

4. The upshot of the refusal by the Magistrate of the application to stand down the case was that the trial proceeded with the Appellant being legally unrepresented. Mr Wong complains that as a result of that, the Appellant did not have a fair trial because :

i. leading questions were asked by the prosecuting barrister which, because the Appellant was acting in person were not objected to;

ii. prejudicial information about the police acting upon information was adduced by the prosecution;

iii. the police officer who obtained the cautioned statement from the Appellant, i.e. PW2, was not cross-examined by the Appellant acting in person;

iv. certain prejudicial questions and answers were allowed to remain in the cautioned statement.

Mr Lam, for the prosecution, makes the point that we are here dealing with a professional Magistrate who would have excised from his mind such prejudicial information, but the point is information about the Appellant being a drug addict and matters like that could be said to be capable of swaying even a professional tribunal;

v. the cautioned statement contains questions which, if the police evidence is correct, need not have been asked but were asked.

5. Another complaint made by Mr Wong which he says was a result of the Appellant being unrepresented, was that the Appellant did not object to the alleged oral admission which he made allegedly to the police at the scene of the arrest. Mr Wong also says that there were glaring discrepancies in the evidence given by the two prosecution witnesses which were not resolved, or sufficiently resolved, by the learned Magistrate. I do not intend to go into details of these discrepancies, but suffice it for me to say that, in my judgment, these are matters which are of importance when dealing with just two prosecution witnesses who were allegedly eye-witnesses to a particular incident, and it was incumbent upon the learned Magistrate to have satisfactorily dealt with these discrepancies before arriving at a conclusion.

6. Another ground of appeal which has also given me some concern is the fact that the prosecuting barrister saw fit to try and produce the Government Chemist's certificate without laying the groundwork for the prosecution's allegation that the drugs found on the Appellant were the same drugs which were subsequently taken to the Government Chemist to be analysed and which was found by the Government Chemist to contain dangerous drugs. The prosecuting barrister simply sought to have the second prosecution witness, who was one of the officers at the scene of the arrest, produce the Government Chemist certificate without calling the dangerous drugs exhibits officer who would have been able to say that he received the drugs from the arresting officers and subsequently kept them in his custody, and subsequently took them to the Government Chemist for analysis.

7. Because the Appellant was acting in person, he was in no position to make any formal admissions about these matters, and in my judgment, this was a serious flaw in the prosecution's case. The discrepancies which I mentioned earlier on between the evidence of the two prosecution witnesses also gave me some concern about the reliability of these convictions.

8. In all the circumstances, taking into account all the matters which I have referred to, I have decided that the appeal should be allowed and the convictions are quashed. Mr Lam, for the prosecution, has quite properly sought a re-trial of this matter because of the seriousness of the charges, and I grant that application and order a re-trial.