THE QUEEN v. LEUNG KWAN

BETWEEN

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JUDGMENT

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Sir Derek Cons, V.P. delivered the judgment of the Court:

1. The Applicant, LEUNG Kwan (the "1st defendant"), was charged, with a co-defendant, before Judge Rattigan with possession of dangerous drugs for the purpose of unlawful trafficking. The amount of the drugs involved was not extensive, although it was No. 4 grade heroin, but was well in excess of the amount needed to bring the presumption of possession for trafficking into play.

2. The evidence against the defendants was from police officers who said that they went to a house which the 1st Defendant subsequently admitted to be his; that the door was opened by him, giving the appearance of having just been woken up; that the 2nd Defendant, a man of 65 years of age and deaf, was sleeping behind a partition; that the dangerous drugs in question were found on and beside a bed which the 1st Defendant admitted to be his; that on the other side of the partition where the other man was sleeping was a set of scales bearing traces of dangerous drugs; that a further set of scales was found in a car parked outside, which the Defendant also admitted to be his; and further that under caution the 1st Defendant made a statement to the effect that the drugs were all his and for his own use, and that they had nothing to do with the other man.

3. The 1st Defendant elected not to give evidence and he was convicted. That was on the 1st September. On the 20th September he was sentenced and on the 10th October he filed notice seeking leave to appeal. His homemade grounds were premised on a lack of sufficient evidence and protestations of innocence. They have not been pursued today.

4. Instead Mr. Kwok on his behalf, in a pleasant and able submission, has put forward an ingenious case based on the judge's acquittal of the 2nd Defendant upon his submission of no case to answer. At the time the judge merely recorded, as far as we can tell from his manuscript record,

"In the case of the 2nd Defendant, I find no case to answer."

 

But he gave full reasons when he subsequently delivered his reserved verdict in the case of the 1st Defendant.

The judge carried on to enumerate the evidence we have just referred to, and concluded that part of his verdict with the words

"In the result I am satisfied beyond reasonable doubt that he was in control of the house and that he lived there at the time. Having accepted that the police witnesses were honest and truthful and that they related truthfully what they found and were told, I was satisfied that the Crown had rebutted the presumption arising against. D2 and I ruled he had no case to answer."

The judge then turned to the case against the 1st Defendant. In the course of dealing with it he said:

"Having had ample opportunity to observe the witnesses when they were in the witness box I am satisfied that they were honest and truthful and put the facts as they found them before the Court. "

On these comments counsel puts his sole ground of appeal:

"The learned trial judge had formed a conclusive view on the evidence adduced by the Crown at the close of the prosecution case."

5. Undoubtedly that is a conclusion which has to be drawn from the words which the judge used. In our view it constitutes a material irregularity in the course of the trial, - see Section 83(1)(c) Criminal Procedure Ordinance, Chapter 221 -, for it is well established that a judge is not required to, and indeed should not, come to a firm conclusion at that stage of the trial. But having said that, we are satisfied that no miscarriage of justice occurred in the present instance for nothing happened thereafter which might have caused the judge to change his mind.

6. We therefore think it proper to give leave to appeal, but for the reasons we have just given, the appeal must be dismissed.