Tong King Chuen v. The Queen
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CACC000225/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 225 OF 1972 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 3rd May 1972 ----------------- JUDGMENT ----------------- 1. This case is one which has caused me a certain amount of anxiety. The appellant was charged with possession of dangerous drugs for purposes of unlawful trafficking. The presumption that he had drugs in his possession for purposes of unlawful trafficking arose solely by reason of the quantity of the drugs found in his possession. It is apparent that from the moment of his arrest and right through to the conclusion of the case the appellant had at all times admitted possession of the drugs but maintained that they were for his own consumption. 2. He was arrested by a police constable in the street. The constable gave evidence that the appellant was acting in what he described as "a suspicious manner". Pausing here for a moment, it is of course strictly incorrect for a police officer to give evidence that a person was "acting in a suspicious manner"; in the same way as it would be incorrect for a witness to say that a person was driving dangerously. It is for the witness to describe the person's actions and for the magistrate then to form his own conclusion as to whether such actions amounted to behaving in a suspicious manner or, as the case may be, driving dangerously. 3. The inference and conclusion is one for the court to draw from the evidence given and not a matter to be stated as a statement of fact by the witness. 4. However, upon being stopped by the constable in the street the appellant was then searched. The constable admitted that the appellant was, to use the constable's own words, "very co-operative and submitted for a search". The appellant was then found to have in the inside pocket of his jacket one white packet which the constable, with justification, suspected contained dangerous drugs. The appellant at once then said, "Give me a chance. I bought it for my own consumption." He was taken back to the police station; the contents of the packet were subsequently analysed and found to contain 6.5 grammes of a mixture which mixture in itself contained 2.5 grammes of salts of esters of morphine. 5. Under Section 46 of the Dangerous Drugs Ordinance possession by a person of more than one half gramme of a salt of ester of morphine gives rise to the presumption that that person was in possession of that quantity of drugs for purposes of unlawful trafficking and the onus is upon that person to prove to the contrary. 6. In this case the appellant maintained throughout the trial that he was in possession of these drugs for his own consumption. At the conclusion of the case for the prosecution the learned magistrate very properly explained to the appellant the effect of the presumption, namely, that it would be for him to rebut the presumption that the quantity found in his possession was for purposes of unlawful trafficking. The appellant then, according to the record, elected to make an unsworn statement. I must assume that the learned magistrate not only informed him of his right to give evidence on oath or affirmation or to make an unsworn statement, but also informed him that, generally speaking, the court attaches more weight to evidence which is given upon affirmation for the simple reason that the truth of such evidence, in distinction to an unsworn statement, can be tested by cross-examination whereas, of course, an unsworn statement cannot be cross-examined upon. The appellant, as I have said, elected to make an unsworn statement and he simply repeated that he was a worker, that he, after he had received his pay, purchased this quantity of dangerous drugs for his own consumption and that it was a supply sufficient to last him for a month. In this court he has repeated that statement saying that he preferred to buy a monthly ration rather than go out daily to buy sufficient for a day's consumption. 7. The magistrate has rightly pointed out that the only evidence against the appellant on the charge of possession for the purposes of unlawful trafficking arises solely by reason of the quantity of the drugs found in his possession, namely 2.5 grammes of salts of esters of morphine. 8. The magistrate has said, and I quote what he said from his findings:-
It would seem apparent from that statement that the magistrate was not satisfied - as indeed he has said in terms - that the appellant had rebutted the presumption that by reason of the quantity of drugs found, they were for the purpose of unlawful trafficking. I would only say this: that where the quantity of drugs is not such that it manifestly indicates trafficking, a court should be very careful before it rejects evidence tending to rebut the presumption. The accused, after all, can do no more than assert the purpose for which he bought the drugs. It may well be in this case that if the appellant had elected to give evidence upon oath or affirmation, as distinct from making an unsworn statement, he might have satisfied the magistrate that these drugs were in fact for his own consumption. However, if he had gone into the witness box the truth of his assertion could, of course, have been challenged by cross-examination as to the circumstances in which he purchased the drugs; from whom, when and where he purchased them. No such cross-examination was permissible by reason of the fact that the appellant had elected to make an unsworn statement. It may well be that if he had given evidence upon oath or affirmation the magistrate might have come to a different conclusion. However, the appellant, having elected to make an unsworn statement, the magistrate had said that he was not satisfied that he had rebutted the presumption that the quantity of drugs found in his possession were for purposes of trafficking. In those circumstances there are no grounds upon which this court could properly interfere with this conviction. 9. The appeal is accordingly dismissed. Representation: (Judgment delivered) Appellant in person. Duckett, S.C.C. for Crown/Respondent. |