The Queen v. Diu Lap-nin
Read the full judgment text of CACC 1439/1983 on BabelCite. This Court of Appeal judgment.
1. The defendant was convicted on one count of possession of a dangerous drug for the purpose of unlawful trafficking, it being alleged that, on 19th February, 1982, he was in possession of 37.312 kilogrammes of prepared opium, for the purpose of unlawful trafficking therein.
Cited by 3 cases
|
CACC001439/1983 [Presumptions under Dangerous Drugs Ordinance.]
BETWEEN:
Coram: Roberts, C. J., Huggins, V.P.& Barker, J. A. Date: 11, 12 & 26 January 1984 ----------------- JUDGMENT ----------------- Roberts, C. J.: Facts 1. The defendant was convicted on one count of possession of a dangerous drug for the purpose of unlawful trafficking, it being alleged that, on 19th February, 1982, he was in possession of 37.312 kilogrammes of prepared opium, for the purpose of unlawful trafficking therein. 2. On the evening of 18th February, 1982, police officers, who were investigating a burglary at No.49 Ma Tau Kok Road, found that the outer doors of Flat B on the sixth floor ("Flat B") had been forced open. 3. When the officers entered Flat B, they found nobody inside. In the kitchen they discovered a refrigerator, in which were polythene bags. On examination these were found to contain the quantity of prepared opium specified in the charge. 4. The police kept watch on Flat B for approximately 48 hours after their first entry into it. During this period nobody entered the flat. Involvement of defendant 5. On 26th April, 1983, the defendant voluntarily surrendered himself to the Narcotics Bureau at Police Headquarters, accompanied by a solicitor. 6. He was thereupon arrested by D.P.C. Lau, cautioned and questioned, in the presence of his solicitor. His answers were recorded, signed by him and produced in evidence without challenge. The defendant made a further short supplementary statement under caution, on 10th May, 1983 in the presence of a solicitor's clerk. This also was admitted in evidence without challenge. 7. The following facts were admitted under section 65(c) of the Criminal Procedure Ordinance
The Defence 8. The defendant gave no evidence and called no witnesses. 9. His defence must therefore be derived from the two statements which he made to the police under caution and from such aspects of the Crown case as could be said to assist him. 10. In these statements, he admits that the flat was rented in his name but insisted that he was not the user of the premises. He asserted that he had rented Flat B on behalf of a friend named NG Tat-leung because NG, who wanted to establish a club there, was a white powder smoker and did not have a good appearance. NG promised to give him 20 per cent of the profits of the clubhouse. 11. He admitted also that he and. "Ah Sai" (i.e. NG) "both have keys to the flat but I don't know if anybody else has" in his statement on 26th May. He last went to the flat on the afternoon of February .17th, when Ng was also there. He stayed for about 45 minutes. 12. After "this incident" he moved to live in the New Territories, because "I was very frightened". 13. He had tried to get in touch with Ng several times since the incident, but had failed to do so. 14. In his second statement, he explained that, after the incident, he had moved his home here and there and that his keys to Flat B had been lost during this period. 15. He does not explain how it was that he came to know that the police had entered the premises on the 19th February nor why he was so frightened that he went to ground in the New Territories for three months. Crown Case 16. In essence, the Crown case depended upon establishing beyond reasonable doubt those facts which would give rise to the presumptions provided for in sections 46 and 47 of the Dangerous Drugs Ordinance 17. In order to activate these presumptions it was necessary for the Crown to establish either, under section 47(1)(c), that the defendant was in possession or control of the premises ; or, under section 47 (1)(d), that he was in possession of keys to Flat B. 18. The Crown sought to establish possession of Flat B by the defendant by the production of the tenancy agreement, which showed the defendant to be the tenant of Flat B at the time when the drugs were found there. 19. As to Section 47 (1) (d), the Crown relied upon the admission by the defendant, in his first statement, that "Ah Sai and I both have keys to the flat", since he had rented it. 20. The Crown further contended that, once the presumptions of possession and knowledge arose under section 46, the presumption that such possession was for the purposes of unlawful trafficking necessarily arose under section 47, by virtue of the Quantity of dangerous drugs which was found on the premises. And that, if these presumptions did arise, it would then be for the defendant to rebut them on the balance of probabilities. 21. As the judge rightly told the jury, the defendant could discharge this burden by any evidence given by the defendant, or by relying upon such evidence contained in the Crown's case as was favourable to him. 22. The only evidence which the defendant could be said to have advanced on his own behalf was the exculpatory matter contained in his statements to the police. This as the judge pointed out, was not tested by cross-examination and might therefore be considered, though it was, a matter for them to decide to be of less worth than evidence which had been so tested. Grounds of Appeal 23. Possession of Flat B. It was complained that the judge had misdirected the jury in that he had told them they were entitled to find proof of possession of the flat from the fact that the appellant was the tenant of it. 24. In the passage in his direction which is criticized, in relation to the proof of "possession, custody and control" of Flat B, the judge says -
25. It would have been better if the judge had used "does not" instead of "might not necessarily" in the passage quoted above. However, immediately thereafter, he puts to the jury a hypothetical situation, in which the paper tenant has sublet and thus has no effective control over the premises. 26. He then asks the jury to look at the "totality of the evidence relating to the tenancy" and the other evidence which they had heard about "occupancy", to see if that proves that the accused was in possession, custody or control of the flat. 27. We do not think that the jury can have been misled into thinking that they were being directed to find that the defendant was in possession of the flat merely from the circumstance that he was the documentary tenant of it. 28. Possession of the keys. It was submitted that the judge had misdirected the jury in relation to the keys, by not warning them that, before the presumption under section 47(1)(d) could arise, the defendant must be shown to have had in his possession "effective " keys of the premises in which the drugs were found - i. e. keys which were proved to have been capable of obtaining entry to Flat B at the relevant time. 29. It was conceded, as part of the agreed facts, that "there were signs of the iron grille and the wooden door having been forced open and that they could be opened at any time." On this basis, it was argued that the jury ought to have been warned that they should not find the presumption established under section 47(1)(d), in the absence of evidence that the keys of which the defendant admitted possession, would open Flat B, since it was likely that the locks on its doors had been broken. 30. This seems to us to be an unreal submission, in view of the defendant's unqualified admission that he had keys to Flat B at the time when the drugs were found in it. It is difficult to see what he can have meant by his admission other than that the keys which he had were keys which would gain him entry to Flat B. Even if, and there was no direct evidence as to this, it is assumed that locks of Flat B were inoperable after the doors were forced, the presumption would not have ceased until the locks were replaced. 31. It is desirable for the Crown to show that keys, which are said to activate the presumption under section 47(1)(d), do fit the locks of the premises. In this case, it could not do so, because the defendant had lost them. 32. Burden of proof. There were two submissions as to this. The first, that the judge misdirected the jury because he indicated to them that, once a presumption was established, a burden of proof shifted to the accused. 33. This argument appeared to have ignored a long line of cases which makes it perfectly clear that the activation of a presumption does place a burden upon the accused person to rebut the effect of it. 34. This ill-fated ground became too subtle for us when counsel seriously submitted that the judge had been in error in telling the jury that a burden lay on "the accused", and that he should have directed them that a burden lay upon "the defence". We have already referred to the judge's comment that the defendant " can prove that which he has to prove, if he has to prove it, through the Crown evidence." 35. The second ground of objection, in relation to the burden of proof was that the judge was in error in directing the jury that "knowledge" could be inferred from a deliberate closing of the eyes -
36. These comments follow a passage in which the judge is referring to the submission that the defendant, if a presumption under section 47 arose against him, had discharged the burden which lay on him by denying that he knew about the presence of the drugs. 37. Thus the judge is telling the jury that, in deciding whether the defendant has shown that he did not possess the drug, they may consider whether or not he has deliberately turned a blind eye, and that they might take this factor into account in deciding if the defendant had shown that he had no knowledge of the drug. 38. The judge describes this approach as a matter of common-sense. With this we agree. Nor do we see fault in his direction on the matter. 39. Storage of Drugs. It was argued that the judge misdirected the jury in law as to the meaning of "the purposes of unlawful trafficking" in section 46. The ground was that possession of the dangerous drugs, as an act of storage, would not itself constitute "trafficking" within the meaning given to the word by section 2 of the Ordinance. 40. The judge, it was argued, should have directed the jury that, if the defendant's purpose might have been limited storing the opium, which was to be dealt with thereafter by other persons, this was insufficient to constitute "trafficking ", which is defined as follows-
41. It is said that, because the word 'storage' does not appear in that definition, whereas it does appear in the definition of 'unlawful' in section 2 separately from 'trafficking in' and because section 37(1) makes it an offence to permit the use of premises "for unlawful trafficking in or the unlawful manufacturing or storage of a dangerous drug", 'trafficking' is not intended to include 'storage'. 42. It was further argued that, if a person does no more than store goods in his premises, he is not in possession for the purposes of 'trafficking', although it was conceded that if the storekeeper was knowingly keeping the drugs for someone else to sell, he would be taking part in unlawful trafficking. 43. As a matter of interpretation, the phrase "dealing with the dangerous drug" is sufficient, in our view, to cover any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal. 44. So far as the facts are concerned, any defendant who knows, as this defendant is presumed to have known, of the presence in premises, of which he was the principal tenant, of a huge quantity of dangerous drugs, must have realized that his premises were being used to store drugs which were destined for sale and distribution in the Hong Kong market and must have thereby given his assistance to the trafficking for them. 45. Was the conviction unsafe? It was argued, in effect, that this was a case in which we should feel a lurking doubt as to the correctness of the conviction, by virtue of a number of factors. 46. Among these were that the defendant was a man of good character who had a job and lived elsewhere; that Ng an admitted drug addict, was using the premises, that there were no drug utensils, such as to make it obvious to a casual visitor that drugs were being stored there, so that the defendant could well have not noticed their presence when he visited the flat on 17th February; that he was unable to call Ng who died before the defendant surrendered himself; his voluntary surrender to the police; his frank admission about the keys and that the only substantial evidence against him arose from the activation of the presumptions. 47. It was, in addition, argued that such a doubt ought more easily to be created in our minds by the fact that, without the presumptions, the Crown could not have established a prima facie case. There is some force in this submission, which would have been of much greater influence on us if it could be said that the defendant had done all that he reasonably could to explain himself. This, by his failure to give evidence, he cannot be said to have done. 48. Without wishing to lay down any rule that the lurking doubt principle should not be applied where a defendant gives no evidence, we do state our view that such a failure makes it much less likely that a court will feel that doubt, which is a matter of instinct and experience as well as of evidence. In this case, we feel no such doubt. 49. At the conclusion of argument, we dismissed the application for leave to appeal against conviction and said that we would give our reasons later. This we have now done. Representation: D. Keane, Q.C., A.J. Corrigan, Cheng Huan for Applicant J.S. Conyngham, Senior C.C., for Respondent |
Other judgments that cite this case