Hon Shui-kong v. The Queen

CACC000340/1982

BETWEEN

_________

Coram: Roberts, C.J., Li & Silke, JJ.A.

Date: 26 October 1982

__________

JUDGMENT

__________

Silke, J.A.:

1. The appellant was convicted in the District Court on the 6th April 1982 on the third charge in a three charge indictment, for possession of dangerous drugs for the purpose of unlawful trafficking.

2. That third charge related to the possession of 386.25 grammes of a mixture containing 152.32 grammes of salts of esters of morphine on 3rd September 1981.

3. On the 3rd September, at about 11 p.m., the police went to Wai Chi Street, flat No. 7 on the 7th floor, from which they saw the appellant emerge. They stopped him and entered the flat with him.

4. The flat consisted of 2 bedrooms, a sitting room, a kitchen and a toilet. The two bedrooms were referred to in the course of the trial as 'A' and 'B'. They are shown on the sketch, which was produced in evidence as Exhibit P2, and in photographs which were before the trial judge and which had been admitted by consent.

5. Upon the appellant's person was found a bunch of keys. He first said that he inhabited Room 'A', the door of which was closed but not locked. The bunch of keys were tried on the locked door of Room 'B' by the inspector in charge of the matter in the flat. He was unable to open the door of Room 'B' until the appellant himself pointed out a key upon the bunch which worked in the lock.

6. Searches were carried out of the flat - that is of the 'A' and 'B' rooms. There were at least three searches, at different times, of Room 'B'. In Room 'B', under the wardrobe, in the second search, was found a plastic bag labeled "Ming Wah". Inside this was another plastic bag containing various packets wrapped in newspaper. These eventually became, through a very confusing, process, Exhibits 21B, 21C and 21D. Exhibit 21B was a series of ten polythene bags as were Exhibit 21C and Exhibit 21D and thought to contain dangerous drugs.

7. The trial judge, having very carefully considered all the evidence as to the items found in the various searches, confusing and difficult though it was, found that the evidence of the searcher, and of the labels made for Exhibits 21B, C and D, established that each of these exhibits was found in Room 'B'. He said:

"These are the only exhibits which the Prosecution have proved beyond reasonable doubt to have been found in Room 'B', to which accused held a key."

He then made reference to the Government Chemist's certificate, which specified these three exhibits as constituting a mixture of 336.99 grammes containing 134.43 grammes of salts of esters of morphine. He was not satisfied that Exhibit 21A was found in Room 'B'.

8. Mr. Mullick argued with some justification that the chain of evidence linking the appellant to the possession of the specific quantity of dangerous drugs included in the charge was not properly established.

9. Mr. Mullick complained that in basing his decision upon the labeling of those three exhibits, 21B, C and D, the trial judge failed to take sufficient or any account of his own findings that much of the large quantity of drugs found in the premises was not properly labeled.

10. There does appear to have been confusion mainly caused by the inept handling of the exhibits by the police exhibits officer and by the number of the police who eventually arrived at that particular premises.

11. The other evidence against the appellant was first that he had the key to Room 'B'. Second that he said, when the police arrived - and this was the subject of the 1st charge upon which he was acquitted - that some dangerous drugs contained in a cigarette packet were all the drugs he had. Third that when two other persons came to the flat, while the police party was there, he shouted to one of them: "Ah Chung, run away".

12. By virtue of the appellant's possession of the keys, the presumptions under sections 46 and 47 of the Ordinance were raised. Mr. Mullick's second ground, which was not strenuously argued before us, was that the judge should have found them to have been rebutted by evidence of the presence of another person in Room 'B1'. The judge deals with this in the following passages:

Some clothing belonging to another person named Hon were found in Room 'B'. However possession of the key by the appellant raised the presumptions and he did not give any evidence in rebuttal. It was correct for the trial judge to find that there was nothing in the Prosecution's evidence which had the effect of rebutting the presumptions.

13. P.C. 17503 found the "Ming Wah" bag with the drugs in it on the 3rd September in Room 'B'. Inspector Cheng supports this. W.P.C. 18540, the exhibits officer, received them from P.C. 17503 in the flat and jotted down on a piece of paper where the bag was found.

14. On the 4th September, in the police station, she labeled them including the crucial Exhibits 21B, C and D and handed them back to P.C. 17503 who in turn handed them to P.C. 672, the Dangerous Drugs Officer.

15. On the 5th September he delivered them to the Government Chemist and on the 10th September P.C. 672 received them back together with the Government Chemist's certificate Exhibit P24(B). He produced it and them in court.

16. This sufficiently establishes the chain of evidence in relation to Exhibits 21B, C and D.

17. We therefore consider that the trial judge was justified in the findings upon which he based the conviction of the appellant. The appeal is dismissed.

Representation:

J. Mullick, Esq. instructed by David K.W. Tsang & Co. for the appellant.

P.J. Cahill, Esq. for the Crown/Respondent.