YEUNG SHUI-SHING v. THE QUEEN
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CACC000671/1974
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 671 OF 1974
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| BETWEEN | ||
| YEUNG Shui-shing | ||
| and | ||
| THE QUEEN | Respondent |
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Coram: Trainor, J.
Date of Judgment: 9th September, 1974.
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JUDGMENT
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1. The appellant in this case appeals against his conviction in the Magistrate's Court at Tsuen Wan for smoking a dangerous drug. At the outset may I say that seldom have I seen a more absurdly drafted charge preferred against anyone than that contained in the amended charge on which the accused was convicted. Why it was necessary to amend the original charge, apart from adding the type of drug smoked, is beyond me. He was charged that he "smoked a dangerous drug to wit (i) a paper tube and one tinfoil, each containing less than one gramme of salts of esters of morphine. (ii) one box of matches containing (a) less than one gramme of salts of esters of morhine (b) one tinfoil containing less than one gramme of salts of esters of morphine." It is difficult to appreciate how that charge could be accepted by way of amendment.
2. This as the learned Magistrate said in his Statement of Findings was a case where there was a direct conflict between the evidence for prosecution and the evidence for the defence.
3. The appellant, today, has raised the point that he had drawn attention of the learned Magistrate that a candle, alleged to have been used by him was found by the police witness standing alight on the ground as he, the appellant, smoked. The candle was examined by the Magistrate and found to be free of any traces of sand. The appellant maintained that where the candle was supposed to be standing was sandy ground and sand must have adhered to the candle if it had been so placed. There is nothing in the record before me to indicate that such conversation between the appellant and the Magistrate took place or that the point raised by the appellant had been considered. When I asked to see the candle, which was an exhibit in the case below, I was informed that it and all other exhibits have been destroyed. Exhibits are as much a part of the record of a case as the type-written transcript.
4. I find that I am not in a position satisfactorily to deal with this case by reason of the absence of those exhibits and in the circumstances I feel that the only proper course for me to follow that justice may be done is to allow this appeal. I allow the accused's appeal and the accused is discharged.
5. I have been given to understand that this is far from the first time that exhibits in a lower court have been destroyed before the hearing of an appeal. This is a very serious matter but it occurs to me that it might be avoided if Magistrates when ordering the forfeiture and destruction of exhibits were to direct that such destruction be postponed until after the expiration of the time limited for appeal or in the event of an appeal pending the decision of the appellate court.
Mr. Harte, C.C. for Respondent.
Appellant in person.
| (J.P. Trainor) | |
| Puisne Judge |
Representation:
Mr. Harte, C.C. for Respondent
Appellant in person.