Koon Koon v Linton

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Warner, J.A
• Judgment Date: 01 March 2008
• Neutral Citation: TT 2008 CA 14
• Docket Number: POS Magisterial Appeal No. 133 of 2007
• Date: 01 March 2008

Court of Appeal

Warner, J.A.; Kangaloo, J.A.

POS Magisterial Appeal No. 133 of 2007

Koon Koon

and

Linton

Appearances:

Mr. E. Welch for the appellant.

Mr. W. Rajbansie for the respondent.

Criminal law - Possession of ammunition — Appeal against conviction — Whether appellant was denied the due process of the law.

Warner, J.A

1 This is an appeal against the conviction of the appellant by a magistrate sitting at a Magistrates' Court in Port of Spain, for the offence of possession of ammunition contrary to section 6(1) of the Firearms Act Chap 16:01, he not being a person exempted under section 7 of the Act, and not being the holder of Firearms User's Licence. The appellant was charged jointly with another person against whom the case was dismissed.

2 The appellant was fined the sum of two thousand five hundred dollars ($2,500) and in default he was ordered to serve a term of imprisonment of one year with hard labour. The case against the appellant was that on the 6th April 2005, at about 2a.m., the complainant, dressed in ‘plain clothes’ was on mobile patrol in the company of other police officers at Buccaneer Drive, Westmoorings, when he observed a vehicle approaching from the opposite direction. The vehicle's headlamps were off. It suddenly turned and sped away. The driver of the patrol car gave chase and intercepted the vehicle. When the complainant approached the vehicle, he found that the appellant was the driver and another person was seated in the front passenger seat. He asked the occupants to alight from the vehicle and searched it.

3 The complainant found a plastic bag in the open “console” area of the vehicle, containing four cylindrical objects which were later analysed at the Forensic Sciences Centre and certified to be ammunition. The appellant and his companion, who is hereinafter referred to as the “co-defendant,” were taken to the Four Roads Police Station where they were charged with the offence. The appellant and the co-defendant both denied that the vehicle was searched, or that they were in possession of ammunition, or that ammunition, was found in the vehicle.

4 The appellant, who lived at Trincity, testified that before the incident, he was at Crobar, a restaurant on Ariapita Avenue Woodbrook in the company of the Manager of that business, one Anthony Chow. He had arranged to meet with Mr. Chow at his home in Westmoorings after he had closed the business that morning, in order to get some information about accommodation in Tobago. On his way there, in the company of the codefendant, he saw a police vehicle at some distance behind his vehicle. He “pulled his vehicle to the side” and stopped. The Officers came to the vehicle and asked them what they were doing in Westmoorings. He explained that they were going to visit his friend Anthony Chow. They (the Police Officers) told them that they were lying. The police officers did not search the vehicle, but instead took the appellant and the co-defendant to the Four Roads Police Station. They were not brought to court until the day following, despite the fact that they were apprehended in the early hours of the previous morning.

5 The appellant's defence was that the case against him had been totally fabricated. His evidence was that he had been beaten at the Police Station, by the complainant; ridiculed by other police officers and that no attempt was made to verify his explanation that they were in the area to visit his friend Anthony Chow. The complainant did agree in cross-examination that the appellant had told him about the reason for their presence in the area. He (the complainant) stated however that he was so informed at the Police Station, but had not seen the need to verify the story.

6 Mr. Chow testified on the appellant's behalf. He confirmed that the appellant and the co-defendant left in a separate vehicle to meet him at his home. He (Chow) however stopped to get petrol on the way. The appellant never came to his home that morning, and calls to his cell phone remained unanswered.

7 The magistrate in her Reasons assessed the case as, “not complex.” She said that the evidence of the appellant's witness (Chow) was not helpful to the court in finding the facts. She found that the degree of control exercised by the appellant and where the ammunition was located in vehicle meant that the appellant had both possession and knowledge of the ammunition. She was not satisfied however, to the extent that she felt sure that the co-defendant was in possession of the ammunition and so she dismissed the charge against him. She made no reference to his evidence and its impact, if any on the case against the appellant.

8 A factor in the magistrate's decision was, that having accepted the complainant's evidence that the appellant was driving with the headlights of the vehicle off, she concluded that a person in possession of an illegal item might not exhibit reasonable and rational behaviour.

9 The first ground of appeal was directed towards the magistrate's reasoning process, which, it was contended, amounted to a denial of due process. Mr. Welch argued that the magistrate did not say that she found the appellant ‘unworthy of credit,’ nor did she comment on his demeanour, yet she concluded that he was in possession of the ammunition because he was driving his vehicle without headlights. This, Counsel continued, was an issue which the appellant and co-defendant “vehemently” denied.

10 The second ground of appeal was that the magistrate erred in law when, by implication, she cast upon the appellant “the obligation to create a reasonable doubt” in the case for the prosecution. To support this ground, the appellant relied on the following passage extracted from the Memorandum of Reasons:

“the court considered carefully the case presented by the appellant, had there been any reasonable doubt of the case for the appellant, the court would have given him the benefit of that doubt. Of course, if the court accepted the evidence of the appellant then the respondent would necessarily not have proven his case against the appellant.”

11 Mr. Welch argued both these grounds together on the basis of his contention that the magistrate operated on the premise that the prosecution's evidence was true.

12 The magistrate in her Reasons, evaluated the back ground facts presented by the prosecution in order to assist her in determining where the truth lay. In that regard, she, stated that she looked at the circumstances under which it was said that the appellant “came to stop the vehicle.” She, having accepted the complainant's evidence that the headlamps of the car were turned off, proceeded to draw certain inferences from that fact, and examined the inherent probabilities and improbabilities of the respective accounts.

13 Once the magistrate in her Reasons demonstrated that she had focused on the important aspects the evidence and the points of law which arose, it was not necessary that she rehearse the ‘formula type’ incantation based on demeanour. We therefore defer to the magistrate on matters of credibility.

14 As to the burden of proof, we think that quite early in her memorandum of Reasons, the magistrate indicated that she had directed her mind towards whether the police led evidence to satisfy the court...