LEU LEUNG v. THE QUEEN

CACC000699/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 699 OF 1968

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BETWEEN
	LEU LEUNG	Appellant
	AND
	THE QUEEN	Respondent

Coram: Huggins, J.

Date of Judgment: 12 December 1968

 

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JUDGMENT

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Huggins, J:

1. The appellant was charged with unlawfully selling dangerous drugs and with unlawful possession of dangerous drugs. Evidence was given by the police that the appellant sold to one of them packet of dangerous drugs and that thereafter he led them to a place where in a matchbox they found further dangerous drugs. The appellant himself did not give evidence but he called a witness and sought to show that he was not at the material place at the material time.

2. The learned magistrate appears to have believed the evidence of the prosecution and if the story of the defence was put to him in the same way that it has been put to me by the appellant I have no doubt that he was right in rejecting the evidence for the defence: I believe what the appellant has told me is a pack of lies.

3. Unfortunately, however, there appears in the Statement of Findings of the learned magistrate the following passage:

"I came to the view that D.W.1's evidence was unreliable and not to be believed. I therefore accepted the evidence adduced on behalf of the respondent as being a true version of the events leading to the appellant's arrest and found him guilty of the 2 offences with which he was charged".

That was clearly a misdirection: the question before the learned magistrate was whether he believed the evidence for the prosecution and the fact that he disbelieved the evidence for the defence did not necessarily mean that he had to believe the evidence for the prosecution. This case was cried by a very experienced magistrate and I suspect that this was a slip on his part. He may not in fact have misdirected himself but I must accept the record as I find it. In these circumstances I have no alternative but to hold that there was a fatal misdirection and to allow the appeal.

4. The appeal is allowed and the appellant is discharged in respect of these offences but of no other.

 

12th December, 1968.

 

Representation:

Appellant in person

Mr. Evans for the Respondent