The Queen v. Chan Lam-kee and Others

DCCC000227/1982

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 227 OF 1982

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Coram: K. Bokhary Deputy Judge in Court

Date: 31 August 1982

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REASONS FOR VERDICT

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1. On the night of March 26, this year, detectives attached to the Narcotics Bureau of the Royal Hong Kong Police conducted two related raids. The first was at Room 138 in Block 20 of Sau Mau Ping Estate in Kowloon. I will refer to these premises as 'Room 138'. The second raid was at Flat K on the 18th Floor of Hopewell Building, 175 Hip Wo Street, Kwun Tong in Kowloon. I will refer to these premises as 'Flat K'. The police found dangerous drugs and a Part I poison in Room 138. They found dangerous drugs in Flat K.

2. I am now only concerned with the 1st Defendant, who faces the 1st, 2nd and 4th charges, and the 4th Defendant, who faces the 2nd charge. Submissions of no case to answer on behalf of the 2nd and 5th Defendants have succeeded; the Crown offered no evidence against tae 3rd Defendant; and the 6th Defendant has pleaded guilty to a lesser offence.

3. The 1st Defendant is in his late forties. The 4th Defendant is his wife. She is in her mid thirties. They lived in Room 138 from about November, 1979, to about November, last year, when they moved into Flat K, where they have lived ever since. They continued to visit Room 138. Nobody else moved in in their stead. On his own evidence, the 1st Defendant visited it once every 10 days or so.

4. The drags mentioned in the 1st charge were contained in 10 transparent plastic bags wrapped in newspaper and partially concealed under the end of a flap of a cardboard box which was used for the deposit of rubbish and which was in that part of Room 138 which served as a sitting room.  These drugs consist of 104.60 grammes of a mixture containing 16.87 grammes of salts of salts of morphine. The 1st charge, which the 1st Defendant now faces on his own, is one of possession of these drugs on March 26, this year, in Room 138, for the purpose of unlawful trafficking therein, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

5. The poison mentioned in the 4th charge was contained in a plastic bag lying on top of a cabinet in what served as a kitchen in Room 138. It is in powder form and is a salt of ephedrine known as ephedrine hydrochloride. The 4th charge, which the 1st Defendant also now faces on his own, is one of possession of this poison contrary to section 23 of the Pharmacy and Poisons Ordinance, Cap. 138. Not unnaturally, the time and place mentioned in this charge is the same as the time and place mentioned in the 1st charge.

6. The drugs mentioned in the 2nd charge were in the 1st and 4th Defendants' bedroom in Flat K. Some were contained in a transparent plastic bag which was in turn contained in a red 'Lai Sze' packet. Some were contained in a plastic phial. Some were contained in two transparent plastic bags wrapped in newspaper. The 'Lai Sze' packet and plastic phial were under the mattress of the bad in that bedroom. The two plastic bags wrapped in newspaper were in one of the pockets of a dressing gown hanging in that bedroom. Together these drugs consist of 30.84 grammes of a mixture containing 4.80 grammes of salts of esters of morphine. The 2nd charge, which the 1st and 4th Defendants both face, is one of possession of these drugs on March 26, this year, in Flat K, for the purpose of unlawful trafficking therein, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

7. On the day in question, i.e. March 26, this year, the 1st Defendant was found to have in his possession keys to the iron grille and the main door of Room 138 and the keys to the iron gate and main door of Flat K. On the same day, the 4th Defendant was found to have keys to the iron gate and the main door of Flat K in her possession. The 1st and 4th Defendants' possession of these keys on that day is admitted by them under section 65C of the Criminal Procedure Ordinance, Cap. 221, as is (subject to one qualification) the presence of the drugs and poison mentioned in the 1st, 2nd and 4th charges in the places and on the date which I have earlier stated. The qualification is this : As far as the 'Lai Sze' packet and the plastic phial are concerned, the admission under section 65C is only that they were found in one of the bedrooms. But there is now no dispute that bedroom was that of the 1st and 4th Defendants and that the 'Lai Sze' packet and plastic phial were found under the mattress to which I have referred. In any event this case would hardly turn on a point of detail of this sort.

8. In the circumstances, by reason of the presumptions contained in section 46 and 47 of the Dangerous Drugs Ordinance, Cap. 134, the lst Defendant is presumed to have had the drugs mentioned in the 1st and 2nd charges in his possession for the purpose of unlawful trafficking therein, while the 4th Defendant is presumed to have had the drugs mentioned in the 2nd charge in her possession for the purpose of unlawful trafficking therein.

9. Mr. Sedgwick is of course correct when he says that statutory presumptions such as these never relieve the Crown of the onus of proving an accused person's guilt beyond reasonable doubt. What is presumed are facts not guilt. Where facts are so presumed, the standard by which they are to be disproved is of course one of a balance of probabilities only.

10. No presumption arises with regard to the poison; and this encouraged Mr. Sedgwick to make a submission of no case to answer on behalf of the 1st Defendant on the 4th charge. This he did with cogency and concision but, nevertheless, without success. I took the view that in all the circumstances a reasonable tribunal properly directed or directing itself would be entitled to conclude that the only reasonable inference was that the lst Defendant knew of the presence of the poison, that he knew its nature and that he was in possession of it in that he intended to possess it and had the ability to reduce it into physical possession.

11. The 1st Defendant gave evidence denying that he knew that there were any drugs or poison in Room 138 or Plat K. The 4th Defendant did not give evidence. She was perfectly within her rights in following such a course; and no inference is to be drawn against her for exercising her right to follow such a course.

12. The 1st and 4th Defendants called one witness, namely, Madam Li Mee Kee, who is also known as Muykee Sae Lee. Madam Li is an elder sister of the 4th Defendant. She lives in Thailand, where he is a hawker. She is in her mid forties, is a widow and has a grown-up son.

13. On March 20, this year, she arrived in Hong Kong with a view to stopping here for a little while before visiting China. She  same to Hong Kong with two friends, both of them ladies. One of then was a Madam Ng Ah Chun. The other was a Madam Ho. At the 4th Defendant's suggestion, Madam Li and these two companions of hers stayed at Room 138 from March 20 to March 22, this year, when Madam Li went to stay in Flat K while her two companions went off elsewhere.

14. Now we come to the controversial part of Madam Li's evidence, which is to the following effect : She says that on the morning of the 22nd, Madam Ng asked her to take a parcel to China for her and that she  ultimately agreed to do this for $4,000. This parcel, she says, contained the drugs mentioned in the 1st and 2nd charges and the poison mentioned in the 4th charge.  She says that the parcel was placed in the cardboard box which I have mentioned and that it remained intact in that box in Room 138 until March 25, when she received a telephone call in Flat K from Madam Ng telling her to go and get two packets and one bottle from the parcel. she says that she then went to Room 138 at about 11.00 a.m. on the 25th and took 3 packets and bottle. These 3 packets (One of which she says was taken by mistake when it somehow stuck to one of the two packets she had intended to take) and this bottle are, on her story, the 3 plastic bags and one plastic phial of drug found by the police in Flat K. What remained of the parcel would be, on her story, the drug found by the police in Room 138. She says that when Madam Ng failed to collect the drags or telephone her about them on the evening of the 26th, she concealed them in the hiding places where they were found by the police later that night.

15. Madam Li's evidence was incoherent and contradictory in the extreme. It took a great deal of effort on my part to marshall the matters of which she spoke into the account which I have just recited. As it is, my effort does more than justice to the defence. If one were to look upon a criminal trial as a contest pure and simple, the corollary of that would be, I suppose, that it does less than justice to the prosecution. But I feel that it is right that if I err I should err on the side of the defence. The fairness with which he has conducted the Crown's case leads me to believe that Mr. Jackson would agree with me on this. By the same token, I heve felt it right to make every allowance I can reasonably make in the 1st Defendant's favour when considering his evidence.

16. At the end of the day, even after making every allowance for their lack of education and the fact that even honest witnesses can sometimes find the experience of giving evidence unsettling, I found myself wholly unimpressed with the evidence which the 1st Defendant and Madam Li gave and the way in which they gave it. As to the 1st Defendant, I found him a cunning and dishonest man in the witness-box. I disbelieved him on all matters of materiality. As to Madam Li, her evidence was inherently improbable. For example, she says that she only hid the drugs found in Flat K upon Madam Ng's failure to collect or contact her about them on the 26th. Why she should wish to hide them then and not before was not reasonably explained - nor was why they should be hidden in the different places where they were found. Another example of the inherent unlikelihood of her account is this: When she was cross-examined as to whether the had anything to say as to how the posion came to be where it was in the kitchen, she said that since Madam Ng had told her that it was seasoning essence she just took it out of the parcel which she had hidden in the cardboard box and put it in the kitchen. This was something out of a parcel which, on her own evidence, contained some highly dubious things, to say the least of it, which she had agreed to take to China for $4,000. I do not believe that she had anything to do with the drugs or poison in question at all. I am sure that she was lying to protect her sister and her sister's husband. I use the word 'sure' advisedly. Mr. Sedgwick submits that I should not reject Madam Li's evidence for present purposes if I merely thought that her account was probably untrue. I take  Mr. Sedgwick to have made a similar submission with regard to the 1st Defendant's evidence.

17. The fact of the matter is that I do not believe that what these two witnesses said on any master of materiality is true and I am left in no reasonable doubt that any such evidence might be true. As I have formed this view, it is not strictly necessary to deal with  Mr. Sedgwick's point. But I feel I should. I do not accept Mr. Sedgwick's point if he means it to go as far as it sounds. I have no difficulty in bringing myself to believe that sections 46 and 47 of the Dangerous Drugs Ordinance, Cap. 134 mean what they say in plain terms. If something is presumed, I do not see how one can disprove it by evidence which is probably untrue. Perhaps all that Mr. Sedgwick is saying is that in the context of a criminal trial one must give very anxious consideration to any evidence adduced in rebuttal of statutory presumptions before rejecting it on a balance of probabilities or otherwise. With that I wholeheartedly agree.

18. As to the poison, I in fact draw the inference which I said that a reasonable tribunal could draw. I am sure that it is the only reasonable inference.

19. One final matter which I wish to deal with is the evidence given by one of the Crown's witnesses of a verbal admission by the 1st Defendant that the drugs found in Flat K were his. Without doubting the rest of that witness's evidence, I was not satisfied beyond reasonable doubt that the 1st Defendant had made any such admission; and I put this piece of evidence out of my mind altogether.

20. In the result, I am satisfied beyond reasonable doubt that the 1st Defendant is guilty on the 1st, 2nd and 4th charges and that the 4th Defendant is guilty on the 2nd charge. I convict them accordingly.