Yip Choi-hoi v. The Queen

CACC000167/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 167 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 23rd May, 1972.

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JUDGMENT

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1. The appellant, a youth aged 20, was convicted by a magistrate at the Wong Tai Sin Magistracy of the charge preferred against him of possession of dangerous drugs for the purposes of unlawful trafficking therein. Upon conviction, he was sentenced to 27 months' imprisonment. He appealed against both his conviction and the sentence imposed. Upon the hearing of the appeal I allowed the appeal and varied the conviction from one of possession of dangerous drugs for the purposes of unlawful trafficking contrary to section 7 (1) of the Dangerous Drugs Ordinance to the lesser offence of simple possession of dangerous drugs contrary to section 8(1) (a) of the said Ordinance, saying that I would give my reasons at a later stage for so doing. I now do so.

2. The facts of the case may be briefly stated. On the evening of the 26th December, a police party under the supervision of a Police Inspector Wong, raided an unnumbered hut at Hong Lok New Village, Wong Tai Sin area. On entering the hut they found the appellant inside. He was searched and thirteen packets containing substances believed to be dangerous drugs were found in his possession. One packet was wrapped in white paper, three in yellow polythene, four in brown paper and five in purple coloured paper. Additionally, there was found upon him a piece of tinfoil, four paper tapers and a match box cover. It is well within judicial knowledge that these are the paraphernalia commonly associated with drug addiction and frequently found upon drug addicts. The contents found in the thirteen packets were subsequently chemically analysed and found to contain in each packet substances which, in themselves, contained minimal quantities of dangerous drugs, to wit, barbitone and salts of esters of morphine. The appellant was arrested and taken back to the police station; the packages were handed over to the duty officer at the police station for retention and subsequent analysis. In due course, the appellant appeared before the magistrate on the charge of possession of dangerous drugs for the purpose of unlawful trafficking and he pleaded not guilty to that charge. The prosecution case consisted solely of a single police constable who entered the hut and found the appellant and the duty officer to whom the packets were subsequently handed over at the police station. The appellant, in his defence, which he gave on oath, told an entirely different story. He said that as he was walking along the road he was approached by three police constables. They stopped him, told him that his hair was too long and that he must be a drug addict. He was handcuffed and taken back to the police station and there he was asked to put his signature to an envelope. He denied at the time of his arrest he was in possession of any drugs at all. The magistrate disbelieved his testimony and accepted the evidence of the police constable that the appellant was in fact found in possession of thirteen packets containing dangerous drugs. The magistrate held that there was no evidence to rebut the presumption of trafficking, raised by virtue of the number of packets found in the appellant's possession, and accordingly convicted him of the offence as charged. Three points were taken by Mr. Sanguinetti, counsel for the appellant, on the hearing of the appeal.

3. First, he submitted that there was a direct conflict of evidence in the case and the charge had not been proved beyond reasonable doubt. He pointed out that the police constable who entered the hut expressly stated that he and the police inspector had entered together, he himself in front of the police inspector, and Mr. Sanguinetti complained that the police inspector was a material witness and that he should have been called to give evidence. Mr. Sanguinetti suggested that an adverse inference might properly be drawn from the fact that Police Inspector Wong, an obviously material and important witness, was not called and no explanation given as to why he was not called. Whilst I am not prepared to go so far as to agree that an adverse inference ought to be drawn from the fact that Police Inspector Wong, a material witness, was not called to give evidence, in my view there is considerable force in the criticism that this police officer should have been called as a witness.

4. The time honoured expression "proof of guilt beyond reasonable doubt" is an uncertain quality which varies considerably according to the nature, temperament and character of the tribunal before whom an accused person may come for trial. Evidence which may satisfy one magistrate for the purpose of establishing beyond reasonable doubt the guilt of a person charged with a serious offence, rendering him liable to a long term of imprisonment, may be insufficient to satisfy another magistrate of a more cautious, prudent - I deliberately refrain from using the word "conscientious" - disposition.

5. For my part, as a measure of prudence I would have thought it clearly desirable that the prosecution should have called the police inspector to give evidence in that court or, alternatively, that the magistrate, of his own motion, should have required the evidence of the police inspector to be given. But having expressed that view, there are no grounds upon which I can properly say that the magistrate, who had the advantage of seeing and hearing the witnesses give their evidence, was not entitled to believe the evidence of the solitary police constable, called as a witness, and having believed that evidence, be satisfied beyond reasonable doubt that the appellant was in fact in possession of the thirteen packets.

6. The next ground of appeal taken by Mr. Sanguinetti was that there was nothing upon the record to show that the presumption of trafficking in dangerous drugs, which arose by reason of the number of packets found in his possession, was ever explained to the appellant; nor was it explained to him how, and by what evidence, such presumption was capable of being rebutted. Again, in my view and as a general criticism the point taken by Mr. Sanguinetti is a valid one. Obviously, there can be cases where an accused person is unrepresented - and he was unrepresented in this case - where it is of vital importance in the interests of justice to explain to the accused who is charged with possession of dangerous drugs for the purposes of unlawful trafficking that the presumption of trafficking arises against him solely (if indeed that be the case) by reason of the amount of the drugs or the quantity of packets containing such drugs, found in his possession. When an accused person is unrepresented it is, in my view, equally necessary that the magistrate should explain to the accused, the type and quality of evidence which, if believed, is capable of rebutting that presumption. In my judgment it is not only necessary, in the interests of justice, that such an explanation should be given to the accused but also that the record of the magistrate should state clearly that it has been so given to him. In this case, there is certainly nothing on the record to show that the nature and effect of the presumption was at any time explained to the appellant. On the other hand, having regard to the nature of the defence raised - a total denial of possession of the drugs - I am satisfied that this apparent failure of the magistrate to explain the nature of the effect of the statutory presumption has not resulted in any injustice to the appellant in this case.

7. The third and last point taken by Mr. Sanguinetti, in my view, contains his strongest argument. On the evidence of the police constable, in addition to the thirteen packets found in his possession the appellant had upon his person a piece of tinfoil, four paper tapers and a match box cover. It is a matter of judicial knowledge of all judges and magistrates trying criminal cases in Hong Kong that these are items frequently found in the possession of drug addicts and habitually used by them when taking dangerous drugs. Neither at the time of convicting the appellant nor in his subsequent statement of findings prepared for the purposes of this appeal has the magistrate made any reference to the fact that the appellant had these items upon his person.

8. A genuine drug addict, found in possession of such a number of packets containing dangerous drugs as to give rise to the statutory presumption of possession of those packets for purposes of unlawful trafficking, but who was, in very truth, in possession of those packets for his own daily or weekly consumption, is placed in a difficult and precarious position. He may admit possession for his own use, in which case, if his plea is accepted and the prosecution does not proceed on the more serious charge, he stands convicted of simple possession on his own plea. On the other hand, he may hope for a complete acquittal and deny possession entirely. If he denies all possession then, of course, if the magistrate finds that he did in fact have such possession, it is manifest that he has made no attempt to rebut the presumption of possession for the purposes of unlawful trafficking operating against him as a matter of law. At the risk of repeating myself, it is for these reasons that where an accused person is unrepresented it is so important to explain fully and carefully the nature and effect of the statutory presumption.

9. But quite apart from the defence - and perhaps an obviously untruthful defence - which the accused person puts forward when totally denying possession, there may be factors - as in the present case - inherent in and disclosed by, the evidence given by the prosecution itself which raised a possibility, or even a probability, that the accused was in fact in possession of the drugs for his own use. In the present case the appellant was found by himself in an unoccupied hut. There was no evidence to suggest that he had at any time been approached by persons to whom he could have sold or distributed drugs. In addition to the thirteen packets found upon him, there was also the paraphernalia, to which I have referred, the possession of which is almost the hallmark of a drug addict. It can, of course, be argued that the possession of such items was a neutral factor in that their possession by the appellant was equally consistent with the loan by him to others as of user, or exclusive user, for himself. But these are matters which, in my view, should have been considered by the magistrate. In the absence of any such consideration it was, in my judgment, unsafe to allow this conviction on the more serious charge of possession of dangerous drugs for purposes of unlawful trafficking to stand and I accordingly allowed the appeal and varied the conviction to one of simple possession of dangerous drugs.

Representation:

Sanguinetti assigned for Appellant.

Caird, C.C. for Crown/Respondent.