Lee Kei-yick and Another v. The Queen

CACC000230/1978

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Coram: Briggs, C.J., Leonard & Zimmern, JJ.

Date of Judgment: 25th October 1978.

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JUDGMENT

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Leonard, J.:

1. We have already dismissed the appeal of the first appellant.

2. The facts on which the learned trial judge must have relied as indicating that the second appellant had a case to answer were as follows: On the 14th November there was found, in a corner of a "cockloft" of premises occupied by the first and second appellants (husband and wife) and some six or seven of their children, a brief case secured by a combination lock which when forced open was seen to hold a relatively large quantity of morphine. Both appellants told the police they lived on the premises with their children and that the brief case had been left there about a month previously by a man called WONG Ye whose address was provided by the first appellant and who was proved to have lived at that address, at the time of the raid both appellants denied knowledge of the contents of the case. The case contained a number of newspapers of which the latest in date was 27th October 1977 indicating that the case had been opened at least 18 days before the raid. The total area of the premises was exceedingly small for such a large number of occupants - slightly over 200 square feet. Photographs of the premises show that access to the cockloft was gained by a ladder which appears from photographs exhibited to be some seven feet long and the cockloft itself was used as a bedroom for the children or some of them and in itself was about 3 feet in height. There was no evidence before the court when a submission of no case was made that the second appellant had keys to the premises. Both appellants denied knowledge of the combination required to open the brief case when questioned by the police at the time of the raid.

3. As the first appellant had been proved to have had possession of the keys to the premises there was clearly a case for him to answer having regard to the presumptions contained in section 47(1)(d) of the Dangerous Drugs Ordinance (Cap. 134) in that he was proved to have had the keys of the premises in which the brief case with the drugs inside was found.

4. In holding that the appellants had a case to answer the learned trial judge observed:

"Having regard to sections 47(1)(a), 47(3) and 46 of the Dangerous Drugs Ordinance I hold that the evidence is such that a reasonable jury could find beyond reasonable doubt that both first and second accused, knew what was in the suit case."

As section 46 deals with the presumption as to trafficking and section 47(3) with the presumption of knowledge of the nature of a drug in possession or presumed to be in possession of a person they are not of immediate assistance. Before any presumption arises section 47(1) must be satisfied and clearly what the learned trial judge must have found was that the second appellant had been proved to have had in her possession or custody or under her control the brief case.

5. The kernel of the interesting proposition of law propounded by Mr. Donnelly was that she had not been so proved because of the existence of what the grounds of appeal refer to as "a presumption existing at common law" which "arose in favour of the second appellant ... that articles found in premises occupied by her husband ... with whom she lived were in the possession of the first applicant alone." For the existence of this presumption Mr. Donnelly relied firstly on a number of Canadian cases. In Rex v. Hand⁽¹⁾ it is observed that:

"where a man and wife are living together in the same dwelling house, in the absence of evidence to the contrary it is a fair presumption that the husband is the tenant."

On this account the wife who regularly sold liquor on the premises was found not guilty of "keeping" it for sale her husband being found guilty of that offence. Here there was no question of the construction of a statutory presumption but rather the application of what the court referred to as a "fair presumption" and what it might equally have referred to as a fair "inference".

6. In Rex v. Gun Ying⁽²⁾ when construing a section of The Opium And Narcotic Drug Act 1929 which created a presumption of possession in "any person who occupies, controls or is in possession of any building" in which any drug was found a majority of the court held that the words I have quoted are used in a limited sense "namely that such occupation, control or possession must under the circumstances be a nature which goes to support the charge, otherwise the presumption of possession does not arise." I do not find this case of great assistance firstly because I am not sure what is meant by "of a nature which goes to support the charge" and secondly because that was a case where the accused, a husband, was, while in possession of the premises, in fact temporarily out of both occupation and control of them when the drugs were found. The case was in no way concerned with joint control of premises by a husband and wife.

7. Tanchuk⁽³⁾ was a case concerning possession of liquor. It was there held (again by a majority and following Hand's Case⁽¹⁾) that where liquor is found in a home in which there resides a husband, wife and family there is a presumption that the wife and children are in the house by right of the husband, the head of the family who is the legal occupant. Here again there is unfortunately no indication as to the origin of the "presumption" of which the court speaks and no question as to the application of any statutory presumption.

8. The case of Reg. v. Klyne⁽⁴⁾ was an appeal by the Crown from the acquittal of a wife on a charge of possession of narcotics. The Crown being limited "to any ground of appeal that involves a question of law alone" contended that assuming the husband was in possession of the room and the contents nevertheless the wife was one "who occupies" within the meaning of a section creating a presumption of possession of drugs against one who occupies, controls or is in possession of premises in which drugs are found. It was again held following Gun Ying's Case⁽²⁾ that the word "occupies" was limited and that:

"It would follow that the fact the accused lived in the same room with her husband may be explained from her status of wife and in the absence of evidence does not imply that she stands in any relationship to the room nor to the narcotics therein contained so as to make her one 'who occupies' within section 17(1) and so cast on her the burden imposed by that section."

Once again this reasoning does not commend itself to me. It ignores the possibility of joint occupation and appears to me to grant to a husband a pre-eminence over his wife in the home which is perhaps not generally recognised in these "enlightened days". Indeed I am in grave doubt as to whether quite such a pre-eminence was ever recognised in English law. The following passages are to be found in Blackstone's Commentaries Vol. 4 page 29 where the question of marital coercion is dealt with:

"and therefore if a woman commit theft, burglary or other civil offences against the laws of society, by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will. Which doctrine is at least a thousand years old in this Kingdom, being to be found among the laws of King Ina, the West Saxon."

After dealing with certain exceptions to this rule he continues:

"In inferior misdemeanours also we may remark another exception: that a wife may be indicted and set in the pillory with her husband for keeping a brothel; for this is an offence touching the domestic economy of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex."

Coleridge in assigning reasons why the defence of coercion was not as readily available in misdemeanours as in felonies mentions the possibility that it may have arisen because to felonies a wife could not have benefit of clergy goes on to say:

"Perhaps as forfeiture was a necessary consequence on attainder for felony and a married woman could have nothing to forfeit; whereas there was no forfeiture in misdemeanour the reason for this distinction can be found ..."

The notes on these passages in the 19th Edition by Ryland remarks that the

"law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter"

but that

"according to the prevailing opinion, it seems that the wife may be found guilty with the husband in all misdemeanours." (author's emphasis)

Married women have "progressed" a long way since those days. In England the common law rule as to coercion was abolished in 1925 (Criminal Justice Act 1925 section 47 a provision mirrored in section 100 of our Criminal Procedure Ordinance). Married women may therefore be guilty of an offence jointly with their husband. They have however preserved their "principal share" in the mangement of the family home. To my mind one would need to be quite unrealistic to hold that a wife did not have at the very least "control" over a brief case left in the matrimonial home when the matrimonial home is only 200 square feet in extent. I do not accept that there is any presumption at common law or otherwise to the contrary. I say this notwithstanding the observations of Talfourd J. in summing up to the jury as reported in Reg. v. Boober⁽⁵⁾. That was a case in which Boober and his wife were indicted for feloniously having in their possession a mould for counterfeit coining. He observed:

"This is entirely a matter for you. The man and woman are living together and that is evidence from which you are at liberty to infer that they are man and wife. If you think so, and also believe that the man was in possession of these moulds, then you ought to acquit the woman as she cannot in law be said to have any possession separate from her husband; but if you think that the criminality was on her part alone and that he was entirely guiltless of any participation in her conduct, then she must, of course, be convicted."

In making these remarks he was I consider doing no more than pointing to the principle of coercion as outlined by Blackstone in the passage I have quoted above. I say this because of his use in their context of the words "separate from her husband". As he goes on to indicate that she could have possession "separate from her husband" if he was "entirely guiltless of any participation in her conduct" he must, I consider, have meant that there could be no joint felonious possession between husband and wife because of the notion of marital coercion now abolished. Therefore I consider that the statutory presumption arose here once it was proved, as it was by her admission, that she knew of the presence of the brief case. The Crown did not have to rely on "control" to raise the presumption against the first appellant - it arose by reason of proof of the fact that he had the keys to the premises. In any event "control" can be joint as indeed can be occupation. This does not seem to have occurred to anyone in the Canadian cases which is the major reason that I do not find them presuasive, a secondary reason being that in Canada the Legislature did not find itself faced with problems so gravely affecting the social structure as did our legislators when dealing with morphine and its derivatives.

9. I am therefore of the opinion that the trial judge was quite correct in holding that the wife had a case to answer by reason of section 47(1)(a).

10. Once this be accepted it was entirely a question of fact for the trial judge to say if he accepted her explanation. It is correct that she did not make the obvious gaffe made by the first appellant when the latter said that the case had lain unopened for more than a month and indeed that there is no obvious lie in her testimony. For my part however I find it impossible to believe that any married woman would permit a brief case to be left casually in the family room for over a fortnight without so much as ascertaining that it was locked. It is quite unbelievable. She failed to rebut the presumption on the balance of probability and her appeal also must be dismissed.

11. Appeal against ...(illegible) also dismissed.

Representation:

Mr. D. Donnelly (H.H. Lau & Co.) for appellants

Mr. Duncan, S.C.C. for Crown/respondent.

(1) (1931) 55 C.C.C. 65.

(2) 53 (1930) C.C.C. 378.

(3) (1936) 63 C.C.C. 193.

(4) (1958) 120 C.C.C. 318.

(5) 4 Cox 272 at 273.