The Queen v. Yiu Kan Chung

CACC000284/1989

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Coram: Silke, V.P., Penlington & Macdougall, JJ.A.

Date of hearing: 20 December 1989

Date of delivery of judgment: 20 December 1989

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J U D G M E N T

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Penlington, J.A. (gave the judgment of the court):

1. This is an application for leave to appeal against a conviction of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The background of the matter is of no great importance but was that the Applicant was found by police officers taxi on the 3rd January of this year and in ten taxi were the packets containing in total some 80 grammes of heroin. The Applicant admitted these packets were his and the sole issue before the trial judge in the District Court was whether or not the Applicant had rebutted the presumption which then arose that he was in possession of these drugs for the purpose of unlawful trafficking.

3. The Applicant gave evidence and said that he had been released from prison only some 17 days previously, that he had been unemployed during those days but he had then got a job in Lantao, that he was going there on the day of his arrest and would be away for about a month. He therefore wished to purchase a supply of heroin which would see him through that period. He is an addict. He gave evidence that on release from prison he had funds available to him amounting to some seven thousand dollars and that he had paid $1,500 for the heroin. He said that he had opened two packets of the drugs and claimed that he had done so to check their quality. Moreover, he sought to explain that the reason why the place at which he had purchased the drugs was some considerable distance from where he lived was because that was his only known source of supply. It was suggested by the applicant's counsel to the judge that it might be inferred from the Government Chemist's certificate, which referred to one paper packet containing 8 plastic bags of drugs and to two separate plastic bags of drugs, that small amounts could have been taken from the small bags and that this might support the applicant's assertion that he had opened two of the bags.

4. The trial judge, in his Statement of Findings said that he had considered this evidence and that he found that the Applicant had failed to rebut the presumption. Mr Sceats, who appeared for the applicant in this court, contended that it is significant that the judge did not specifically state that he disbelieved the Applicant. From this he sought to infer that the judge must have accepted the applicant's evidence and that his finding that the applicant had not discharged the presumption was an aberration. Mr Coghlan for the Crown referred us to the recent decision of this Court in The Queen v. Chan Chui Lap, Crim. App. No. 114 of 1989, in which a similar application was dismissed, and submitted the finding of the judge in that case is indistinguishable from that in the present case. In Chan's case the judge had said,

"In the event I have come to the conclusion that Defendant has completely failed to rebut the presumption."

We think that for all practical purposes there is no valid distinction to be made between a finding that a defendant has failed to rebut the relevant presumption and a conclusion by the judge that he disbelieves the defendant on that issue.

5. The judge set out the Defendant's evidence to show that he had considered it, not that he accepted it as Mr Sceats seems to suggest. There was, pernaps, some confusion as to the amount of drugs which the Applicant said he consumed each day and whether, in fact, the 80 grammes was a 30 days' supply or a 15 days' supply. The judge found that it was a 30 days' supply and stated that he accepted that the applicant's mathematical calculation was correct. That, however, falls far short of an acceptance of the applicant's claim that the drugs were for his own use. Indeed we are satisfied that, by his finding, the judge clearly rejected the applicant's explanation for his possession of the drugs.

6. We agree with Mr. Coghlan that the present case is indistinguishable from The Queen v. Chan Chui Lap. There the court made it plain that where a judge depends for his conclusion exclusively on the impression made on him by a defendant while in the witness box this court will not interfere merely because it feels that in the circumstances as they appear from the record it might itself have come to a different conclusion. We would add that in any event we have no such feelings here.

7. For these reasons the application for leave to appeal is dismissed.

Representation:

Mr. C. Coghlan, S.C.C., for the Crown

Mr. B.A. Sceats (D.L.A.) for Applicant