THE QUEEN v. CHOW MAN WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction )

MAGISTRACY CRIMINAL APPEAL   NO. 927 OF 1988

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J U D G M E N T

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1. This is an appeal from the Magistrates Court at North Kowloon against the conviction of the appellant on the 25th August 1988 for an offence of possession of dangerous drugs for the purpose of unlawful trafficking. The appeal was allowed and I indicated at the time that reasons would be given later I now give my reasons.

2. There were a number of grounds of appeal but Mr. Alderdice who appeared for the appellant first argued a preliminary point that the conviction was unsafe and unsatisfactory by virtue of the learned magistrate's comments in relation to the second arrest of the appellant.

3. There was a serious conflict between the evidence of the prosecution witnesses .in this case and the evidence of the appellant. The appellant gave evidence that he had been framed and the evidence of the prosecution witnesses had been fabricated against him. The conviction depended upon the magistrate believing the prosecution witnesses were telling the true and disbelieving the evidence of the appellant. The charge related to events which occurred on the 22nd June 1988.

4. In the course of his evidence, the appellant testified as follows :-

"After the day of my arrest I met PW1 around 6 p.m. on 5.7.88. It was at junction of road where phone company was situated. It was near steps leading down to Blocks.1, 2 and 3. When I walked up I saw the 2 officers. One of them was PW1. He was holding a note boot, and was facing a Chinese male and was writing out something. He waved me over to him. He asked me when. I would be in court in respect of to-day's case. He then said, 'Little brother, you are so cheeky'. I then said, 'Whether I am cheeky nothing to do with you. I left and returned home.

On 23.7.88 I met PW1 again. It was my birthday. I met him at pedestrian crossing near market opposite Block 14 of Pak Tin Estate. I was arrested by PW1 on that day for same thing. According to him another packet was found. On 22.6.88 I did not possess dangerous drug. On 21.7.88 I did not possess dangerous drug."

5. It appears, that the reference, to the 21st July, 1988 in the appeal record should_. he the 23rd July 1988.

6. There were a number of discrepancies in the evidence of the prosecution witnesses which I do not propose to go through, but make reference to them because of the way the magistrate evaluated the evidence. He said:-

"Nonetheless in this case I was satisfied such discrepancies there were did not affect the credibility of PW1 and PW2. The fact that PW1 arrested the Appellant again at a later date for the same offence had, in my view, strengthened rather than prejudiced the Crown's case."

7. It is this last comment which is criticised by Mr. Alderdice who asks that the conviction be set aside and that the court should order a speedy retrial

8. Mr Bailey for the Crown, who had been prepared to support the conviction initially, concedes that this direction that the magistrate gave himself about the second arrest strengthening the Crown case was fatal to the conviction and he also asks for a speedy retrial.

9. This was a case, where in view of the nature of the defence and the allegation that the prosecution witnesses had fabricated a case against him, it would have been proper for the prosecution to lead evidence as to the defendant's character and previous convictions. As it was, the evidence of the second arrest came out in the course of the appellant's defence at the trial. I agree with both counsel that the magistrate's approach to the second arrest as strengthening the Crown case was wrong. It amounted to a direction that the evidence of the prosecution witnesses was strengthened because there had been a second arrest. The second arrest did not assist the prosecution at all and indeed I was told that the appellant has since been acquitted in respect of the proceedings resulting from that arrest.

10. I therefore ordered that the conviction be set aside and the matter retried at an early date.