Lui Lung v. The Queen

Case No.CACC 316/1980

Court

Court of Appeal

Date01 May 1980

Judge—

Case Document

100%Judiciary

CACC000316/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 316 OF 1980

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Between
	Lui Lung	Appellant
	AND
	The Queen	Respondent

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Coram: Power, J. in Court

Date of Judgment: 1 May 1980

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JUDGMENT

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1. In this matter the appellant and another defendant were originally jointly charged with :

	(A)	Possession of Dangerous Drugs and
	(B)	Possession of Equipment Fit and Intended for Injection of a Dangerous Drug.

Both of them denied both charges.

2. The evidence placed before the Learned Magistrate showed :

	(i)	that the appellant and the other defendant were having a meal in Room 1838 B3 Kwai Hing Estate at about 6.42 p.m. on 6th January 1980 when a police party entered the premises;
	(ii)	that the appellant was the tenant of the room where he said he lived with his wife and children and that the other defendant was visiting him on that evening. (Keys were found on the appellant but there was no evidence that they were the keys of the flat);
	(iii)	that a syringe with two needles was found on top of a cupboard in the kitchen of Room 1838 and a phial and a spoon were found in a compartment in the cupboard. (The Government Chemist found minute quantities of salts of esters of morphine on these articles).

3. At the conclusion of the Crown case the Learned Magistrate appears to have dismissed the (A) charge of possession of dangerous drugs as against both the appellant and the other defendant and to have amended the (B) charge so as to specify the instruments with greater particularity. He then dismissed that charged as against the other defendant and proceeded, after hearing evidence from the appellant to convict him of that charge.

4. His Statement of Findings shows that when convicting the appellant he relied upon "the presumption of possession arising from his occupation of the premises"

5. As far as I am aware there is in existence no presumption in those express terms.

6. I am satisfied that the Learned Magistrate must have been referring to a presumption which he considered arose under S.47 (1)(c) of Dangerous Drugs Ordinance. This presumption arises when a person has premises under his control in which a dangerous drug is found.

7. A person who has premises under his control in which a dangerous drug is found will be presumed until the contrary is proved to have had possession of that drug.

8. However, it must be stressed that the presumption only arises where it is proved that a person was in control of premises and a dangerous drug was found in those premises

9. In the present case it is true that the appellant, on his own admission, was the tenant of the premises and lived there with his wife and children and that the other defendant was only a visitor, From that evidence I am satisfied that the Learned Magistrate would have been entitled to find that, at the time of the police raid the premises were under his control, and, had he been dealing with a charge of possession of dangerous drugs, to have found that the presumption of possession of the drugs arose against the appellant

10. It is true that originally a charge of possession of dangerous drugs was preferred against the appellant.

11. However at the direction of the Learned Magistrate that charges was not proceeded with. As I have indicated at the conclusion of the Crown case the Learned Magistrate dismissed that charge as against both appellant and the other defendant and proceeded to try the appellant on a charge of possession of equipment fit and intended for the injection of a dangerous drug.

12. At this stage the record of proceedings contains a note as follows: "Defendant's rights explained and also the presumptions".

13. It is difficult to know what presumptions were being referred to as, at that stage, the only charge was one of possession of equipment and there are no presumptions in the Dangerous Drugs Ordinance arising from the fact that a person has premises under his control in which such equipment is found.

14. In his Statement of Findings the Learned Magistrate said "The Dangerous Drugs the subject of the charge were simply found in parts of the premises of which the appellant was proved to have been the occupier".

15. It seems clear that the Learned Magistrate must have been applying the presumption which he considered arose under S.47(1)(c). This presumption, however, arises, as I have already indicated, only upon the finding of a dangerous drug and relates to that dangerous drug and does not apply to a situation in which instruments are found. It seems clear that the Learned Magistrate was applying it to such a situation as, later in his Statement of Findings, the Learned Magistrate said "Having regard to the places where the equipment was found I was not satisfied on the balance of possibilities that the appellant had rebutted the presumption of possession".

16. Undoubtedly the confusion arose because originally there had been a charge of possession of a dangerous drug.

17. Be that as it may, it seems clear that the Learned Magistrate when conviction the appellant mistakenly relied upon a presumption which did not arise.

18. The conviction must be quashed. In all of the circumstances I do not consider it a proper case in which to order a retrial. The appellant is ordered to be discharged.

19. I once again comment, as I have done in an earlier appeal, that when a Consider relies upon a presumption it is essential both that it makes it clear exactly what presumption As being relied upon and that it makes express findings as to the facts which it is satisfied give rise to that presumption.

	(N.P. Power)
	Judge of the High Court

Representation:

Appellant in person

Mr Conyngham. Crown Counsel, for Respondent