R. v. LEUNG WING KWONG

1996, No. MA 1177

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted before a magistrate of three offences :-

(a) possession of a dangerous drug;

(b) assaulting a police officer; and

(c) resisting a police officer

and he was sentenced to a total of 10 months' imprisonment.

2. He first appeared before a magistrate on 2nd April 1996. He was not represented and he pleaded not guilty. Trial date was fixed on 24th May 1996. On the trial date, the appellant was again not represented. He told the magistrate that he had been assaulted by the police and had made a complaint to CAPO. He was injured in the assault. CAPO then sent him to QEH for treatment. He wanted to obtain a medical report from QEH on his injuries to put before the magistrate. The prosecution told the magistrate that there was no medical report in respect of the appellant with the prosecution. The case was then stood down. Later, when the case was brought up before the magistrate again, the appellant was represented by Mr Leung of the Duty Lawyer Scheme. Mr Leung informed the magistrate that an adjournment of four to five weeks was required in order to make a request to QEH to obtain the medical report. The case was then adjourned to 1st July 1996.

3. On 1st July 1996, the appellant was represented by Miss Ma of the Duty Lawyer Scheme. Miss Ma applied for an adjournment but the application was refused. The case was then sent to the trial magistrate for trial. When the appellant went before the trial magistrate, Miss Ma on his behalf renewed the application for an adjournment on the ground that the medical report was not yet available but it would be ready by the middle of July 1996. She submitted to the trial magistrate that to proceed in the absence of the medical report which is vital to the appellant's defence would be prejudicial to the appellant.

4. However, the magistrate refused the application and proceeded to hear evidence.

5. The prosecution case was that two police officers PW1 and PW2 intercepted the appellant on the street and searched him. They found suspected dangerous drugs on his person. The appellant then attempted to escape. He was caught and a struggle ensued. The police officers having subdued him, took the appellant back to the location where he was first intercepted. There, a post record of what happened was made by the officer in his note book. But the appellant refused to sign on it. He also refused to sign on the bag which contained the suspected dangerous drug. These were later found to be dangerous drugs.

6. Two other police officers had come to the assistance of PW1 and PW2 after the appellant was intercepted. Both these two officers told the magistrate that they did not see any assault on the appellant.

7. The appellant's case was that he was stopped at a location different from where the officers said he was intercepted. The officers found nothing on him and PW1 and PW2 took him to the location the officers said they stopped him. There, PW1 took out a cigarette packet which contained the dangerous drugs and told the appellant to admit possession of it. The appellant was assaulted on his neck, bit and kneed on his back. The appellant refused to sign on the note book and the bag containing the dangerous drugs. He sustained injuries and was then arrested. The following day, he complained to CAPO of assault by the officers. Officers in CAPO then sent him to QEH for treatment where he was found to have injuries on his neck, back and chest. No medical report was available to him after treatment.

8. The magistrate believed the evidence of the police officers and rejected the appellant's evidence of being assaulted and framed up by the police officers. The magistrate then convicted the appellant of the offence.

9. The main ground of appeal is that the magistrate was wrong in refusing the adjournment for the appellant to adduce the medical report as evidence, although the magistrate was aware that the medical report had been asked for and would be available to the defence soon. In the absence of the medical report to proceed with the trial was prejudicial to the appellant.

10. Ms Remedios for the appellant in this appeal now seeks to adduce in evidence the medical report of Dr Shieh Mun of QEH. The appellant in his affidavit affirmed that he only knew of the existence of the report after he had lodged his notice of appeal when he was told by Legal Aid counsel that the report was made by Dr Shieh Mun on 25th June 1996 but not available to the appellant's legal representative on 1st July 1996. The report by Dr Shieh Mun was dated 25th June 1996 and it stated that the appellant had sustained injuries on his neck, head, back, arms, hand and shoulder.

11. Mr Liu for the prosecution had no objection to the application to adduce the report. He indicated that the prosecution had no strong objection to the appeal being allowed if there was a retrial. By so indicating, the prosecution had in fact conceded that the absence of the medical report was prejudicial to the appellant in his defence before the magistrate.

12. This medical report is consistent with the appellant's case that he had been assaulted. If the report was available to the appellant at the trial, it would have assisted counsel representing him in cross-examination of the police officers. The medical report would have been a factor in the appellant's favour and against the police officers when the magistrate came to assess the weight of the evidence before him. The magistrate might or might not have taken a different view of the prosecution case. But the refusal to adjourn had deprived the appellant of the opportunity to adduce relevant evidence and a fair trial.

13. The prosecution having conceded the conviction cannot stand, the appeal must be allowed. The conviction is quashed and the sentence set aside.

14. The appellant was sentenced to 10 months' imprisonment and he has already served 7 months out of this prison term. Given the normal remission, he has almost served the full term. To order a retrial would not have been fair. I made no order for retrial.