Mak Biu and Others v. The Queen

CACC000349/1976

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Coram: Huggins, J.A.

Date of Judgment: 28th April 1976.

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JUDGMENT

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1. This case has caused me considerable anxiety and I am deeply indebted to Mr. Whetter for the assistance which he has given me. These three Appellants were among four men charged with possession of dangerous drugs for the purpose of unlawful trafficking. All three appeal against conviction and the first Appellant further appeals against his sentence of one year's imprisonment and a fine of $1,000 or six months.

2. The evidence was that the police carried out a raid on a house, where they found three men sitting in one room and the first Appellant sitting in the next room. Hanging on a partition they found a hollow piece of wood in which were some dangerous drugs. As Mr. Whetter points out, the quantity of drugs only just exceeds that which is the minimum required to raise a presumption under s.46.

3. The first Appellant in the court below admitted that he was "in possession" but maintained throughout that he had possession for his own consumption, and he gave details of where he purchased the drugs and how much he paid for them. He put his character in issue and denied that he had previous convictions for possession for the purpose of trafficking. The record does not appear to have been proved before conviction but it was subsequently admitted for the purpose of sentence. The magistrate in his Reasons said that the evidence of the record proved the Appellant to be "a blatant liar". With respect I think that was a little unkind. It is true that the Appellant did have three previous convictions for possession for the purpose of unlawful trafficking but it is to be noticed that the sentences passed were such as to indicate that the offences were of a very minor nature and even to raise doubts whether there were proper convictions for possession for trafficking: in one case there was a fine of $30, in another one day's imprisonment and the other sentence is recorded as "on probation for eighteen months and to Shek Ku Chau". I cannot help suspecting that when he denied having been convicted of possession for the purpose of trafficking the Appellant had in mind his belief (as in the present case) that he was not guilty of that offence and had been found guilty by virtue of a presumption. His evidence was no doubt untrue but it may not have been deliberately false. As Rigby, C.J. once remarked, where a presumption is relied upon, the defendant can do very little beyond assert that he had the drugs for his own consumption. Where the defendant's evidence is disbelieved for a reason which this Court thinks is possibly not entirely sound, it is difficult to allow the conviction to stand.

4. I have hesitated long about this case but I think the proper course here is to allow the appeal of the first Appellant against his conviction on the charge laid and to enter a conviction of simple possession.

5. That leaves the question of sentence. Had the Appellant been properly convicted of possession for the purpose of unlawful trafficking I would think the sentence imposed was unduly lenient, and in the circumstances what I propose to do is to set aside the fine but not to interfere with the sentence of twelve months' imprisonment.

6. As to the convictions of the second and third Appellants I am by no means satisfied that there was sufficient evidence to justify these convictions. It is true that the third Appellant lived in the premises but there is nothing to indicate that he or the second Appellant knew of these drugs and I do not think that the presumptions arise even in respect of the third Appellant. If they did, then, of course, the fact that he chose not to give evidence would have justified his conviction. The appeals of the second and third Appellants against conviction will be allowed and the sentences set aside.

28th April 1976.

Representation: