Fung Chi Keung v. The Queen

CACC000157/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 157 OF 1968

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Coram: Huggins, J.

Date of Judgment: 19 April 1968

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JUDGMENT

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Huggins, J.: The appellant was one of two defendants charged jointly with unlawful possession of dangerous drugs. The other defendant pleaded guilty but the appellant pleaded not guilty and was convicted after a trial. He now appeals to this court against his conviction on the ground that there was no evidence that he was in possession of the drugs in question.

2. The evidence for the prosecution was that police officers on patrol saw the two men squatting in a lane. On seeing the police enter the lane both men stood up and a brown paper packet was found on the ground between them. This packet contained dangerous drugs. One witness said that the packet was on the ground half way between the two men, about one foot away from the appellant. Another witness said the packet was on the ground between the two defendants and about 1 to 1 1/2 feet away from the appellant. Two other packets of dangerous drugs were found upon the person of the other defendant. The appellant made an unsworn statement which contained nothing material to the case.

3. In my view the evidence raised no more than a strong suspicion against the appellant. The mere fact that goods are found equidistant from two persons is not sufficient to justify an inference that they were in joint possession of the goods, although I do not, of course, accept the contention of the appellant that because the other defendant pleaded guilty to possession the appellant must of necessity be acquitted. It is a possibility on the evidence given that the other defendant was in the act of transferring one packet of drugs to the appellant. If that be the truth (and it is enough for our purposes that it should be a reasonable possibility) there would be no question of joint possession but before the appellant could be convicted it would be necessary to establish the stage which the transaction had reached i.e. whether possession had been transferred to him. In my view there was no evidence which justified a finding that the appellant had assumed possession of this packet or that he was in any way party to possession by the defendant.

Therefore the appeal is allowed and the conviction quashed.

19th April, 1968.

Representation:

Appellant in person.

K. Mok C.C. for Respondent.