HKSAR v. CHU KAM TO

HCMA 1222/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1222 OF 2000

(ON APPEAL FROM NKCC 5191/2000)

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J U D G M E N T

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1. This is an appeal against the appellant's conviction by Mr Sham at North Kowloon Magistrate's Court on 7 November 2000 on one charge of possession of dangerous drugs contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

2. The drugs in question were allegedly contained in four cigarettes, which together with 8 others were found inside a Marlboro cigarette packet inside the left pocket of the appellant's upper garment. The four cigarettes were shorter than the other cigarettes in the packet. Two of the cigarettes each contained 0.04g of a mixture containing traces of heroin hydrochloride. The other two cigarettes each contained 0.03g of a mixture containing traces of heroin hydrochloride.

3. The prosecution called one witness, PC 33441 the officer who had allegedly searched the appellant and found the drugs. The defendant, who was unrepresented, gave evidence but elected not to call any witnesses.

4. The prosecution evidence was essentially this: At around 10.50 p.m. on 24 July 2000, PC 33441 was one of 4 police officers manning a roadblock in Boundary Street. He was specifically responsible for search duties. At around 11.08 p.m. his colleague WPC 56635 stopped a taxi and directed it to drive over to him. The appellant and a female passenger were in the back of the taxi. The upper part of the appellant's body was lying over the female's thighs.

5. The officer in charge of the roadblock told the occupants of the taxi that the police would conduct a "stop and search".

6. In view of the suspicious position of the appellant, PC 33441 told him that he suspected him of possessing drugs and asked him to alight. He took the appellant to the pavement and after searching him found the Marlboro cigarette packet in the pocket to which I have referred. He saw that something was wrapped at the end of the 4 cigarettes which are the subject of the charge. When he opened the wrapping, he saw some white powder. After being cautioned the defendant said nothing. A further search of the defendant revealed nothing else.

7. After the police were satisfied that the driver and the female passenger knew nothing of the matter, they were allowed to leave. The defendant and the exhibit were taken back to the police station. The officer denied a suggestion that the appellant had asked him to take the female passenger back to the police station so she could make a report and be a witness.

8. The defendant's account was that, while he and the female passenger had been asked to alight and then searched, the police had found nothing on either of them. The female PC had then shone a torch into the taxi and found a cigarette packet under one of the front seats. 4 or 5 cigarettes were scattered on the floor. The WPC had used a tissue to wipe dirt off those cigarettes. She had handed the cigarettes to the arresting officer who told the appellant that he suspected the cigarettes were his and that they contained dangerous drugs. He told the appellant that he was going to arrest him. The appellant asked the officer how he could say that the cigarettes belonged to him because they had been picked up inside the car. He asked the officer to take the female passenger and the driver back to the Police Station to be witnesses, but the officer said there was no need and the appellant only needed to explain to the judge.

9. There being no issue as to the analysis of the contents of the cigarettes the matter was essentially that of the credibility of the witnesses. The learned magistrate found that PC 33441 was honest and reliable. On the other hand, he rejected the evidence of the appellant and gave his reasons for doing so.

10. In his Perfected Grounds of Appeal against Conviction, Mr McGowan has advanced a number of grounds.

11. The first is that the learned magistrate having been made aware of the appellant's criminal record, should not have continued to try the case without the appellant's express agreement. It is true that on 23 August 2000, some 10 weeks before the trial of this matter, the appellant had come before the learned magistrate upon an application for bail. The prosecution had objected to bail on the ground that the defendant had 21 previous convictions, 8 of which related to dangerous drugs. It would clearly have been desirable, in such circumstances, for the case to be listed before another magistrate. However it was not. Whether the learned magistrate in this case recollected the fact that the appellant had previously been before him is unclear. Whether he was aware or not is not material insofar as this appeal is concerned. Magistrates and District Judges do from time to time in the performance of their judicial functions come to hear about matters which are inadmissible against the person they are trying. Often it is an unavoidable part of the trial process. It is part of their professional duty to put these matters out of their minds when they consider their verdict. It may be an unusual concept for a lay person to understand and this is the reason that the situation should be avoided if possible, but it is not a difficult principle for a judge or a magistrate to follow in practice.

12. Lord Widgery CJ stated the position succinctly in R. v. A Metropolitan Stipendiary Magistrate ex p. Gallagher and another [1972] 136 J.P. Jo 80 as follows:

"It is a commonplace that in magistrates' courts the court may have knowledge of the accused's previous record simply by virtue of the fact that the court may have sat to determine previous charges against him. It is no doubt desirable in many instances that an accused person should come before a magistrate who does not have an intimate knowledge of his record. But that desirability cannot be elevated to a proposition of law sufficient to deprive the magistrate of jurisdiction and thus to justify an order of prohibition going in a case of this kind. Having said that, the court would, however, stress the desirability that a magistrate should not try an information when he has an intimate knowledge of the accused's background, and no doubt in this case consideration will be given to the possibility of some other magistrate dealing with the matters in question."

13. There is nothing in this case to suggest that the learned magistrate let any recollection he might have had of the appellant's previous court appearance affect him in any way. This ground of appeal provides no basis for upsetting the conviction.

14. Mr McGowan for the appellant, further argued that in the circumstances of this case, where the appellant was unrepresented and after it had emerged during cross-examination by the appellant that there was another officer present when he was searched and the appellant had put to the prosecution witness that the cigarettes had not been found on him but on the floor of the car, the magistrate should then have asked the appellant whether he wished to invite the prosecution to call "these officers".

15. Mr McGowan said that this was necessary because "it is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as necessary for the proper conduct of his defence" (per O'Connor J in Szeto Ming v. Regina [1978] HKLR 61 at 62).

16. The identity of the officer who was present when the defendant was being searched was not revealed nor was it apparent at that stage which officer the appellant was alleging had found the cigarettes on the floor of the car, so further steps would have had to have been taken to identify those individuals before the prosecution could be invited to call them.

17. While a magistrate has a duty to give a defendant such assistance as is necessary properly to conduct his defence, I am not satisfied that the magistrate had a duty to take the steps suggested by Mr McGowan. The magistrate had quite properly advised the defendant of his rights, including his right to call any person he wished to give evidence on his behalf. That is as far as he needed to go. If the appellant had given any indication that he wished any other police officer present at the scene to give evidence, the position might well have been different. He did not. A judge or magistrate is not obliged to suggest to an accused the names of witnesses he may call (see Silke VP in Regina v. Tse Kwok Fu alias Daai San CA No. 531/90). Equally he is not obliged to suggest to the defendant the names of witnesses he might invite the prosecution to call.

18. Having informed the appellant of his right to call any witness he wished, and the prosecution having elected not to call any additional witnesses consequent upon the defendant having put his case to their sole witness, the learned magistrate's duty was to decide the case upon the evidence the parties had chosen to put before him.

19. This ground of appeal again provides no ground for upsetting the conviction.

20. Two grounds of appeal were based upon alleged interruptions by the learned magistrate. The first allegedly preventing the appellant from fully stating his objections to the production of Exh. P1 (the 4 cigarettes) and the second allegedly preventing the appellant from putting his case.

21. Insofar as the first alleged interruption is concerned, it does appear from the transcript as though the appellant (after commenting on the appearance of the 4 cigarettes and being told by the magistrate that they would have been broken up for the purpose of analysis) may not have finished what he was saying before the magistrate admitted the exhibit in evidence. It must be borne in mind, however, that witnesses often do not complete sentences and that a transcript may give a misleading impression that there has been an interruption. In any event, what the magistrate was asking the appellant was whether he had any objection to the production of the exhibit. It is clear from his subsequent evidence that the appellant was not disputing that the 4 cigarettes were those in question. In his evidence, he even asked the magistrate to look at them more carefully in order to observe dirt on them.

22. There was nothing in the suggestion that the learned magistrate stopped the appellant from putting his case to the prosecution witness. On an occasion when the appellant appeared to be giving a narrative during his cross-examination of the prosecution witness the magistrate simply reminded him that he should ask questions. The appellant put his case, namely that the cigarettes were found not in his pocket but on the floor of the car.

23. A further ground of appeal was based upon the fact that the learned magistrate failed to take time to consider the evidence after it concluded but went on immediately to deliver his verdict. There is nothing in this ground of appeal. There is no necessity for a magistrate to pause to consider his verdict in a simple case such as the present if he considers that he has properly appreciated the evidence.

24. A further ground of appeal was that the learned magistrate failed to scrutinise the 4 cigarettes adequately or at all even after being specifically requested by the appellant to do so. Mr McGowan based his complaint on an exchange between the appellant and the learned magistrate as follows:

Appellant: "Yes... So Sir I'd like you to look more carefully that some of the cigarettes which were unpacked and were lying on the floor with some dirt attached on them. There was some dirt there".

The learned magistrate: "Yes, ok, I've looked at them already. Do you have anymore to say in evidence?"

25. I do not find that this exchange necessarily indicated that the magistrate did not look at the cigarettes in response to the appellant's invitation. Even if it did, I do not consider that the magistrate would have been obliged to examine them again if he was satisfied he had done so carefully previously. It should be noted that the appellant had earlier in his evidence referred to there having been dirt on the cigarettes.

26. It was further suggested that the learned magistrate's reasons for disbelieving the appellant's evidence were not supported by the evidence. This ground arises from one of the reasons given by the learned magistrate for finding that the appellant's account that the cigarettes were found under the front seat of the taxi was unbelievable. The learned magistrate said that if the cigarette packet with dangerous drugs inside had been found under a front seat, bearing in mind that there was a driver and a female taxi passenger "... I would expect that the police would have at least investigated the three persons in order to find out if they had any connection with the dangerous drugs. There was no such evidence in this case." Mr McGowan suggests that this was a misstatement of the evidence, as the prosecution witness had said that after the cigarettes containing the suspected drugs were found, his "colleagues conducted enquiries on the female passenger and the driver. Upon enquiries, my colleagues found that they had no knowledge of the matter and believed that they were not connected with it. So after we wrote down some information of them, we allowed the two people to leave." This argument misses the point that what the magistrate was commenting upon was what would have happened if the police had found the drugs on the floor of the car as the appellant alleged. The prosecution witness denied that any such thing had occurred. It is only the appellant who alleged that it did. What the magistrate was doing was commenting on the credibility of the appellant's account. The appellant's account was when the WPC had found the cigarettes packet and cigarettes on the floor of the car, she had handed them to the male PC who had immediately said that he suspected that those cigarettes were the appellant's and that he was going to arrest him. The appellant made no mention of any enquiries being made of the driver and the female passenger. He even said that the officer had refused to take them to the police station to be witnesses.

27. This point made by the learned magistrate was a legitimate one (as was his comment on the lack of any evidence as to why the officer should wish to frame the appellant), particularly, in view of appellant's evidence that when the taxi was first stopped both he and the female passenger had been searched. If at that stage they were both suspects why should the officer immediately assume that the cigarettes belonged to the appellant just because they had been found on the floor of the taxi?

28. I am satisfied that there is nothing in the grounds of appeal which separately or collectively suggest that the appellant's conviction was unsafe. I accordingly dismiss the appeal.