Lam Ki and Another v. The Queen

CACC000266/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 266 OF 1980

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Coram: Bewley, J. in Court

Date of Judgment: 21 May 1980

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JUDGMENT

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1. These two appellants, together with a 19 year old girl, Chan Pik Lin, were convicted of possession of dangerous drugs for the purpose of unlawful trafficking. Both appellants were sentenced to 2½ years imprisonment. They now appeal against both conviction and sentence.

2. On the 10th January this year, at 8 a.m., a police party went to Room 615, Ho Lok Apartments, Nathan Road. They knocked on the door and said they were police. They heard the noise of furniture being moved about, but the door was not opened. D.C.14695 stood on a chair and looked through the ventilation window. The first appellant was squatting beside the table and the second appellant sitting on a bed, on which the third defendant (the girl) was lying. He again told them to open the door and the first appellant got up and did so.

3. The officers entered the room and D.C.14695 carried out a search. On the floor, near the spot where the first appellant had been squatting, the P.C. found a Viceroy cigarette packet. This contained 19 small packets, which were later proved to contain a mixture weighing 3.21 grammes, of which 0.53 grammes were salts of esters of morphine and 0.31 grammes barbitone. 18 of these packets were wrapped in Jockey Club betting slip paper and all were secured by Scotch tape.

4. In a drawer of a cupboard beside the bed, 3 sheets of the same paper and a roll of Scotch tape were found. Nothing else suspicious was found in the room, or on the persons of the three occupants. All three were arrested and cautioned, but remained silent.

5. Both the appellants gave evidence and denied any knowledge of the drugs. They said they had been playing mahjong all night until 6 a.m., when they went to sleep. The first appellant said he lived in Room 602 in the same apartment, and the second appellant admitted that he occupied Room 615.

6. The Learned Magistrate found the police officers to be reliable witnesses, and accepted their evidence as correct. He found that the exhibits had been discovered as alleged, and that each appellant was inside the premises at the time the police party arrived. He disbelieved the appellants' evidence. In the light of the second appellant's admission that he lived in the premises, he found that he was caught by the presumption in Section 47(c) of the Dangerous Drugs Ordinance. Not being satisfied on a balance of probability that the second appellant's evidence was true, he found that the presumption was not displaced and that he was in possession of the drugs. This was a question of fact and there was ample evidence on which the Magistrate could come to this conclusion.

7. In view of the quantity involved, Section 46 of the Ordinance also applied. No attempt having been made to rebut this presumption, the Learned Magistrate convicted the second appellant of possession for the purpose of trafficking. On the evidence, this was the only reasonable conclusion he could reach. The second appellant's appeal against conviction is dismissed.

8. The Learned Magistrate in his Statement of Findings appreciated that the first appellant's position was different. He was in the room, but was not in possession or control of the premises. However, the Learned Magistrate inferred, from the fact that he had been squatting near where the drugs were found, and from the fact that it was he who admitted the police, that he and the second appellant were in joint possession of the drugs. He said he could not see any innocent explanation for his presence and actions.

9. I do not think, with respect, that this is right. The first appellant was not caught by any presumption and the Learned Magistrate realized this. The evidence was circumstantial. In order to convict, the Court had to be satisfied, beyond reasonable doubt, that he knew that the cigarette packet contained drugs. There is no evidence that he did. The Learned Magistrate was influenced by the fact that the first appellant was squatting down close to the cigarette packet. But, if the occupants of the room had been playing mahjong all night, the presence of a packet of cigarettes on the floor was an unremarkable fact. It presumably was not a large room. There were two people on the bed. There was no reason why the first appellant should not have been squatting on the floor. There is nothing sinister in this. Nor is there anything sinister, in my judgment, in the fact that it was the first appellant who opened the door: there was a police officer shouting through the ventilation window.

10. In these circumstances, the inference that the first appellant thought the packet contained cigarettes, if he noticed it at all, is as consistent with the facts, as the inference that he had guilty knowledge. It cannot, therefore, be said that the first appellant was proved to have been in possession of the drugs. His appeal is allowed and the conviction quashed.

11. The second appellant is 24 and has 7 previous convictions, of which 2 are for drug offences. There were no mitigating factors in his case. The sentence imposed is within the tariff for this quantity of drugs. The second appellant's appeal against sentence is also dismissed.

Representation:

Appellants in person

Mr Freeman, Crown Counsel, for respondent