The Queen v. Leung Ping Lam

DCCC000235/1991

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT WANCHAI LAW COURT

CASE NO. 235 OF 1991

D.C. CASE NO. 235 of 1991

Coram: Deputy District Judge Ching Y. Wong

Date: this the 22 August 1991

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RULING

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THE CHARGE

1. The defendant is charged with possession of dangerous drugs for the purpose of unlawful trafficking therein contrary to S.7(1) and (2) of the Dangerous Drugs Ordinance Cap.134. To this charge he has pleaded 'Not Guilty'.

THE EVIDENCE

2. Briefly, the evidence given by Prosecution witnesses were that at approximately 0100 hours on 10th January 1991, a party of police officers attended at 225 Portland Street, 3rd Floor, Mongkok to conduct a search. The defendant was seen to come out of Room 18 of the premises. Later, Room 18 was searched and under the pillow of the bed inside, two lucky money packets were found. One lucky money packet contained two unsealed plastic packets, whilst the other contained seven sealed plastic packets. Each of the plastic packets contained a substance suspected to be dangerous drugs. Upon analysis by the Government Chemist, the contents were found to be a total of 15.27 grammes of a mixture which contained 9.00 grammes of salts of esters of morphine. The Crown has produced this Certificate to certify that the quantity of the dangerous drugs found was as specified in the "Particulars of Offence". Two keys were found on the defendant, one opened the main door of the premises and the other opened the door of Room 18. A rent receipt with the name of the accused written thereon and for these premises was also found in Room 18.

THE ISSUE

3. At the close of the Crown's case, it was submitted on behalf of the defendant, inter alia, that the presumptions under S.46 and S.47 of the Dangerous Drugs Ordiance, upon which the Crown relied, contravened S.8 A.11(1) of the Bill of Rights Ordinance ("BORO")

4. The issue therefore concerns whether SS.46 and 47 (1) (c) and (d) and S.47(3) of the DDO are in violation of S.8 A.11(1) of the BORO. I shall not deal with S.46 because I have ruled that S.46(c) and (d) are in violation of A.11(1) of the BORO in the case of NG PO LAM DCC No.101/91 (see annexed copy of ruling) and are considered repealed. I shall therefore solely confine this ruling to S.47.

S.47 of the Dangerous Drugs Ordinance Cap.134

5. S.47 is titled "Presumption of possession and knowledge of dangerous drug" and has four subsections. Subsections (1) and (2) deal with presumptions in relation to the possession of dangerous drugs and subsection (3) deals with presumption as to knowledge of the dangerous drugs. Subsection (4) lays down what is not to constitute a rebuttal of the presumption of possession.

6. S.47(1) provides that:

"Any person who is proved to have had in his possession or custody or under his control-

(a)	.....
(b)	.....
(c)	any place or premises or the part of any place or premises in which a dangerous drug is found;
(d)	the keys of any place or premises or part of any place or premises in which a dangerous drug is found,
shall, until the contrary is proved, be presumed to have had such drug in his possession."

S.47(3) provides that:

"Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

THE ANALYSIS

7. The courts have hitherto dealt with the presumptions under S.47 in a very literal way. Questions were posed in some such manner as the following, if it be keys to premises which were concerned:

(a)	were there dangerous drugs found in the premises? If the answer be in the affirmative, then
(b)	were keys which fitted the main door and/or gate of the premises found in the possession of the accused? If the answer be in the affirmative, then
(c)	Is there evidence which the court can rely upon to be satisfied on the balance of probabilities that although the accused is presumed to be in possession of the dangerous drugs and therefore presumed to know that it was dangerous drugs, those presumptions or either of them are wrong? If the answer be in the affirmative, the accused will be acquitted of a charge of possession of dangerous drugs, be it under S.7 or S.8. However, if the answer be in the negative, then although the court may be in doubt as to the correctness of those presumptions or either of them, the accused will be convicted of possession of the dangerous drugs.

8. The ruling which I have annexed herewith of. NG PO LAM's case wherein I ruled that S.46(c) and (d) of the DDO was in contravention of S.8 A.11(1) of the BORO applies mutadis mutandis. In this case two presumptions are involved but the principles and considerations remain the same.

9. 'Possession of dangerous drug' is an essential element of the offence under S.7 of the DDO. What the Crown needs to prove beyond reasonable doubt is that the accused was in possession of the dangerous drug, be it actual physical possession or constructive possession. The presumption of possession given rise to by S.47(1) is therefore a presumption of an essential element of the offence under S.7. The accused is required to prove on the balance of probabilities that the presumption is wrong in order to escape conviction. Even if he succeeded in raising a reasonable doubt as to the correctness of the presumption of possession, he will nonetheless be convicted. Thus, the presumption of possession may give rise to a situation where the accused will be convicted even when the trier of fact has a reasonable doubt in his mind as to the correctness of the possession so presumed. This is the very sort of presumption which the Canadian courts have found to be so objectionable and unjustifiable that in every single case where such a presumption fell to be considered, the courts have ruled that it is in violation of the presumption of innocence. Without the presumption under S.47(1), the possession or custody or control of, inter alia, premises or keys to premises mentioned therein could not by itself give rise to a reasonable and irresistible inference that the accused was in possession of the dangerous drug so found, without a consideration of the surrounding circumstances. With the presumption, the trier of fact need not consider the surrounding circumstances in order to find that possession of dangerous drug has been proved beyond a reasonable doubt; it is so presumed. Hence, I find that S.47(l) (c) and (d) are in violation of S.8 A.11(1) of the BORO.

10. S.47(3) is a presumption that concerns knowledge; that is, where an accused has been proved or presumed to have been in possession of a dangerous drug, he is presumed to have known the "nature of such drug". Although S.7 does not include the word 'knowingly', by having such a presumption of knowledge in S.47(3), the legislature must have regarded knowledge of what one possessed also to be an essential element of an offence where 'possession' of dangerous drug was an essential element. Hence, the element of knowledge must also be regarded as an essential ingredient of the offence under S.7. That being so, the objections which apply to S.47(1) also apply to this subsection. Accordingly, I rule that S.47(3) is in violation of S.8 A.11(1) of the BORO.

CONCLUSION

11. Having ruled that S.47(1)(c) and (d) and S.47(3) are in violation of A.11(1), it is necessary to consider whether they, or any of them, are able to be saved by the imposition of limitations upon the interpretation of A.11(1) in respect of them.

12. Mr. Fung has submitted that the presumption of possession in S.47 is part of what he termed a 'statutory scheme of presumptions' when raised in connection with an offence under S.7 of the Dangerous Drugs Ordinance. That is, a scheme whereby a presumption is built upon another presumption which is itself built upon yet a further presumption. He used as example the possession of keys to premises wherein dangerous drugs were found. He submitted that possession of such keys would be sufficient to raise the presumption of possession of the dangerous drugs (under S.47(1)(d)) which in turn would raise the presumption of knowledge (under S.47(3)), which in turn would raise the presumption as to possession for trafficking (under S.46) if the quantity involved was above the specified limit. (Assuming for the sake of the example, that s.46 has not been considered repealed). This, he said, was very unsatisfactory because it totally ignored realities of the factual situation that premises would normally be occupied by a family. It would not be uncommon for members of such a family each to be in possession of keys to the front door and/or gate. The presumptions under S.47 could therefore inculpate those innocent members, who had absolutely no connection with the dangerous drugs found inside the premises, and lead to a conviction, unless each succeeded in rebutting the presumptions raised on the balance of probabilities. Mr. Fung concluded, therefore, that A.11(1) should not be limited in its interpretation as regards S.47 and that any limitation sought to be imposed could not pass the three tests of 'rational connection', 'minimal impairment' and 'proportionality'.

13. Mr. Dykes submitted, however, that the presumption of possession so far as keys to premises were concerned, was a very rational presumption because in general, the key-holder would be in care and control and would have dominion of articles found in the premises. He said that this presumption is made more easy to rebut if there were others who also had keys. Further, the presumption as to knowledge is also rational and logical because in the normal course of things, a person would be fully aware of what he or she was in possession of. Hence, the presumptions under S.47 are rational and should. not be repealed, especially in view of the fact that they are aimed at tackling the serious social problem of dangerous drugs trafficking.

14. Whilst I readily accept that there exists the serious social problem of dangerous drugs trafficking in Hong Kong, with respect, I cannot accept that the two presumptions under consideration are rational in the sense which Mr. Dykes has so eloquently submitted. Indeed if the mere possession of keys to premises will lead so naturally to the possession of all items found therein, then there would not be a need for the presumption of possession; and this applies also to the presumption of knowledge. I am of the view that knowledge of what one is in possession of is not a natural consequence which would flow inevitably from the possession of an item. As Mr. Fung submitted, there exists many other equally reasonable explanation as to why one would be in possession of keys to a premises and yet not be in possession of any dangerous drugs found therein; a fortiori, knowing that they were dangerous drugs. Using the same example which Mr. Fung has used, it is quite possible that each and every member of a family who possessed keys to the front door and/or gate may be convicted under S.7, if the presumptions are invoked, when the real situation was that only one member was guilty of that offence.

15. An accused's possession of keys to premises wherein dangerous drugs were found is certainly very relevant evidence to the issue as to whether he was in possession of those dangerous drugs. However, it is not direct evidence. It is only circumstantial. evidence which a court is entitled take into account together with the rest of the evidence, drawing inferences where proper, in coming to its decision on whether an accused was in possession of the drugs. Jumping from the proof of the accused's possession of such keys, without more, to the conclusion that he was, beyond reasobable doubt, in possession of the dangerous drugs, would not be a proper inference because there is no rational connection between the two. Hence, the further jump to the conclusion that he must have known what he is presumed to possess is dangerous drugs cannot be sustained as proper on any rational connection basis.

RULING

16. Bearing in mind the tests which any limitation on the presumption of innocence has to satisfy, I find that A.11(1) need not be limited in anywise in its interpretation as regards S.47(1)(c) and (d) and S.47(3). Any limitation sought to be imposed upon A. 11(1) would not pass those tests and would not be necessary nor justifiable. Hence, I rule that in accordance with S.3 of the BORO, S.47(1)(c) and (d) and S.47(3) must be, in this case, considered to be repealed.