Siu Sze and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 131 OF 1973

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Coram: Pickering, J.

Date: 18th April, 1973.

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JUDGMENT

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1.  The first appellant appeals against both conviction and sentence in respect of a charge of possession of dangerous drugs for the purpose of unlawful trafficking and of a further charge of possession of pipes fit for smoking dangerous drugs.  The second appellant appeals only against sentence in respect of convictions upon identical charges.

2.  It was the evidence of a Revenue Inspector that at 8 a.m. on 20th October 1972 he took a party of Preventative Service Officers on a dangerous drugs raid at 3B Sai Yee Lane, Diamond Hill, Kowloon, which premises consist of a hut.  The main door of the hut was closed but the witness obtained entry by means of a rear window and, inside the hut, discovered the second appellant, sleeping.  Another man, who has not appealed against his conviction, was also in the hut in which was found opium dross, pots of prepared opium and two opium pipes together with three opium lamps. 

3.  Whilst the search was under way, the first appellant opened the door of the hut with a key and was about to enter when he saw the raiding party and tried, unsuccessfully, to escape.  The key in his hand was found to fit the door of the hut and, accordingly, the presumption of possession arising under s.47 of the Dangerous Drugs Ordinance (Cap. 134) arose; moreover, by virtue of the quantity of dangerous drugs within the hut, of which the first appellant was presumed to be in possession.  presumption that he had possession thereof for the purpose of trafficking  therein – which presumption arises under s.46 of the same Ordinance – also arose.

4.  It was the first appellant’s evidence that both the key and the hut belonged to the second appellant and that he had come there merely to smoke opium.

5.  It was Mr. Eddis’s complaint, on behalf of the first appellant, that the learned magistrate did not give proper attention to the distinction in law which should exist between the presumptions arising under ss.47 and 46 respectively.  Counsel further urged that the first appellant’s claim that the key belonged to the second appellant should have weighed in rebuttal of the presumptions raised against him, the more so since he was not cross-examined upon this.  As to Mr. Eddis’s comment that similarly the matter was never put to the second appellant, I would merely observe that the second appellant gave no evidence and there was no opportunity for cross-examination of him upon this or any other point.  The third ground of appeal was that the learned magistrate failed to enquire about the means of entry to the hut available to the other accused persons and that, without this evidence, it would be unsafe to assume any greater degree of proprietorship in the appellant as compared with the other accused persons.  I do not think that there is any substance in this ground of appeal since the proprietorship of the hut was not more than marginally relevant; what was in issue was possession of the drugs in a quantity which attracted the presumption that such possession was for the purpose of trafficking.

6.  The fourth ground of appeal was similar to the third in that it concerned ownership of the hut, and the final ground was that the learned magistrate ought not to have taken into account the dress and apparel of the first appellant at his trial as a matter tending towards his guilt when no evidence whatsoever had been produced to show the nature of his dress and apparel at the time of the commission of the alleged offence.  In this connection the learned magistrate does appear to have placed some over-emphasis upon the appearance of the appellant in court, making a special note, which reads:

“Note: Expensively dressed. Expensive new tunic with expensive Parker Pen. Highly polished shoes. Solid gold Rolex oyster perpetual watch 2-5 years old. Genuine Chinese jade bangle on other wrist.”

7.  That these indicia over-impressed the learned magistrate appears to be confirmed from his comment in the Statement of Findings that

“The appellant presented a striking contrast to the second and third defendants. Aged 62, he looked younger. He was erect and healthy looking. He looked far different to some emaciated human wreck ruined by persistent opium smoking. He was alert and he was expensively dressed with expensive personal belongings as noted down in the notes of evidence. He was the owner of a cooked food stall established for over ten years. He told me he did not save any money. He did not appear to me so casual in his approach to worldly belongings. He gave the impression of being shrewd and able. I came to the conclusion he had very much a proprietary interest in this hut, in its equipment and in the large number of pots of opium and other containers which were found there and which obviously represented a considerable investment far beyond any personal use (valued by P.W.1 at $10,000).”

8.  It is, of course, trite to observe that expensive dress and expensive personal belongings need not necessarily represent the proceeds of dealing in dangerous drugs.  Although the learned magistrate appears to have been over-influenced by these matters, they do not go to the root of the convictions.

9.  The substance of the case against the first appellant was his possession of a key to the hut containing dangerous drugs, and such possession gives rise to the presumption that the dangerous drugs were in his possession. The quantity of these drugs was such as to give rise to the further presumption that they were so in his possession for the purpose of trafficking therein.  It was thereupon for the first appellant to rebut these presumptions, upon a balance of probabilities, if he could.  The explanation as to his possession of the key which he put forward was simply not believed and accordingly he failed in his attempt in rebuttal.  I am unable to agree with Mr. Eddis’s submission that for a presumption of possession for the purposes of trafficking to arise, there has to be some credible evidence to connect the drugs with what is understood by trafficking.  The presumption is there, imposed by statute, and unless it can be rebutted on the balance of probabilities anybody attracting the presumption must inevitably be convicted.  This was the situation of the first appellant, whose appeal contains no merits and is dismissed.

10.  The first appellant was sentenced to 15 months imprisonment upon the charge of possession for the purpose of trafficking and to six months consecutive imprisonment upon the charge of possession of pipes fit for smoking dangerous drugs.  He has two previous convictions for smoking opium and was fined upon each occasion.  There is nothing untoward in the sentences imposed. Whilst I am of the opinion that it was clearly wrong for the Revenue Officer, after conviction and before sentence, to give evidence to the effect that:

“The 3 are working together.

D.1 is the owner and financier.

D.2 works for him full time in this opium business”.

There is nothing to indicate that the learned magistrate allowed those statements to influence him in the matter of sentence. Had it been otherwise, the first appellant, as the owner and financier, would presumably have received not the same, but lengthier sentences than the second appellant. The first appellant’s appeal against sentence is dismissed.

11.  The second appellant, who received identical sentences upon the same charges, had nothing to say upon his appeal against sentence except “I beg you to reduce my sentence by a few months”. There is no possible ground for acceding to that bare request, and the second appellant’s appeal against sentence is dismissed.

Eddis (David K.W. Tsang & Co.) for 1st appellant.

2nd appellant in person

Dick, C.C., for respondent.