JUDGE ORDERS NEW TRIAL IN HEROIN CASE

The province's top court has quashed a conviction against a city man
for trafficking in heroin more than eight years ago and ordered a new
trial.

But the Alberta Court of Appeal's ruling on Monday had nothing to do
with the fact the trial judge fell asleep while the accused, Nicholas
Cypui Chan, was testifying during a sentencing hearing on Dec. 1, 2004.

Justices Ellen Picard, Marina Paperny and Keith Ritter concluded it
was Justice John Moore's handling of undercover officers'
identification evidence that warranted the decision.

"The trial judge regarded the photographic lineup evidence to be
problematic," wrote the appellate court. "As a consequence, he decided
to disregard it completely. However, some of the photographic lineup
evidence tended to exculpate Nicholas.

"The evidence relating to Nicholas's identity was not overwhelming.
Had the trial judge considered that some of the officers were unable
to identify Nicholas when they were shown his picture, it may have
raised a reasonable doubt."

Moore convicted Chan, now 30, earlier that year of possession for the
purpose of trafficking and for being in possession of more than
$1,000, knowing it was derived from the commission of a crime.

It was alleged that Chan sold 56 grams of heroin to undercover police
officers at a city restaurant for $7,000 on Nov. 15, 1999.

Moore, who fell asleep because of a medical condition, refused an
application by Chan for a mistrial but did step down from the Court of
Queen's Bench case. Sentencing was handled by another judge.

Justice Peter McIntyre sentenced Chan on Aug. 22, 2005, to 71/2 years
in prison. However, in a rare move, McIntyre gave him triple credit
for more than two years already spent in pre-trial custody, because of
the bad conditions in the remand centre, reducing his time to serve to
just under a year.

Chan is expected to be back in court next month to set a date for his
second trial.