HKSAR v. Kiran Gurung

CACC000393/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 393
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, J.J.A. in Court

Date of hearing: 3 March 1998

Date of delivery of judgment: 13 March 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted after a trial in the District Court before Deputy Judge Lim of trafficking in 2.82 kilos of cannabis resin and of having custody or control of 14 counterfeit HK$1,000 bank notes of the Hong Kong and Shanghai Banking Corporation and 10 counterfeit HK$1,000 bank notes of the Standard Chartered Bank which he knew or believed to be counterfeits. He was sentenced to 3 years' imprisonment on the first charge and 18 months' imprisonment on the second and it was further ordered that 6 months of the sentence to be served on the second charge should run concurrently with the sentence imposed on the first charge. The Applicant now seeks leave to appeal against these convictions and the sentences which were imposed upon on him.

2. On the evening of 18th January 1997 a team of Customs Officers attended at a flat on the 14/F of Mirador Mansions in Tsim Sha Tsui and demanded to be admitted. The Applicant who was the only person present at the time of the raid opened the door and let the officers in. According to the prosecution he was searched and a set of keys was found on him and two stacks of bank notes. The latter were returned to him. One of the keys was used to open what was described as a storeroom. In the storeroom there was a briefcase which was opened. In the briefcase were four packets of cannabis resin and 14 counterfeit Hong Kong and Shanghai Bank HK$1,000 notes.

3. A search was then conducted in the flat and a further quantity of cannabis resin was found under a sofa. Also various other articles were found. These included scales, two knives, a nail clipper and a mobile telephone with its battery charger. Traces of cannabis were subsequently found on the knives and nail clipper.

4. The Applicant was taken back to the Customs and Excise Office at Rumsey Street where he made a cautioned statement which, unopposed, was admitted as evidence.

5. Also 10 counterfeit Standard Chartered Bank HK$1,000 notes were taken from him.

6. At the trial a submission of no case to answer was made on the basis that the presumption of possession of dangerous drugs under section 47 of the Dangerous Drugs Ordinance, Cap. 134 did not apply.

7. Section 47 (1) (b) refers to:

"the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug."

8. Mr. Vidler who represented the Applicant below submitted that what was contemplated by the section was essentially portable items and that items in a storeroom were not caught by the presumption.

9. After reviewing the relevant authorities the judge determined that a storeroom could come within the subsection. In coming to this conclusion he placed considerable reliance upon the definition of a "container" in the Shorter Oxford Dictionary.

10. He went on to find that the presumption was triggered for the cannabis resin found in the briefcase which amounted to 2.8 kilos.

11. He was also satisfied that there was sufficient evidence to enable him to draw an inference that the counterfeit notes found in the briefcase had been in the possession of the Applicant. For this and all of the counterfeit bank notes he was satisfied that there was a case to answer.

12. He was however satisfied that the cannabis resin found under the sofa was not caught by the presumption.

13. The Applicant went into the witness box and gave evidence. He said that since arriving eight months previously from Nepal he had stayed at another apartment in Mirador Mansions on the 16th floor. His cousin who had shortly before his arrest left Hong Kong had occupied the flat on the 14th floor. The cousin had asked him to look after his flat for him and had given him the keys in question.

14. Both apartments belonged to the same landlord, a Pakistani gentleman, Mr. Guljar. Mr. Guljar who was a busy man had asked his cousin to assist him by giving access to the storeroom to other guests when he himself was busy with other matters. For this he received a rebate on his rent. The Applicant had likewise rendered this assistance while his cousin was away. Mr. Guljar also had a key to the storeroom. He had not been aware of the existence of the briefcase.

15. As to the bank notes which had been found on him the moneys represented the proceeds of sale of various items he had sold as a hawker in Temple Street. He denied that the counterfeit notes had been separated from the other notes which had been found on him. He had been unaware of the fact that the notes in his personal possession were not genuine. He also pointed out that some of the items which had been found in the flat had not been in a prominent position.

16. The judge was not satisfied that the Applicant had rebutted the presumption or that he had been telling the truth. He was also satisfied that the prosecution had proved its case on the two charges at the appropriate level and convicted the Applicant.

17. The first ground of appeal concerns the first charge and is inelegantly phrased as follows:

"The learned trial judge erred in law in convicting the appellant of the said charge.

The learned trial judge erred in that he relied heavily on the presumption that a storeroom to which the appellant was found to possess a key as a similar container within the meaning of Section 47(1)(b) of the Dangerous Drugs Ordinance.

Particulars

(1) the learned trial judge had found that the presumption applied to a storeroom - part of a place of premises which is too wide a construction of Section 47(1)(b) as it now is, to go unchallenged.

R. v. Lum Wai Ming (1992 2HKCLR 219)

(2) the learned trial judge had erred in his finding that the said presumption to be proven beyond a reasonable doubt at the conclusion of the Crown case."

18. Mr. Miller for the Applicant before us submitted that it was necessary to consider a storeroom in the context of the various items referred to in the subsection. He went on to argue that the reference to "other similar container" clearly envisaged something more portable than a room albeit that goods may be stored in the room.

19. Mr Saw, S.C., for the Respondent submitted that the test was not the mobility of the container but the exclusivity of the access to it.

20. We do not agree. It is not sufficient simply to consider the reasoning of the judges in R. v. SIN Yau-ming [1992] 1HKCLR 127 when they determined that the old section 47 offended against the provisions contained in the Bill of Rights. What is necessary is to have regard to the terms of the amended section.

21. We are concerned here with a question of interpretation. The evidence that must be considered is that which establishes the nature of the Container. Only if the evidence proves that the Container is one of the types to which reference is made in the section or similar thereto does any presumption arise.

22. The evidence established that this was a storeroom. There is no specific reference to such a room in the section. We are satisfied that the ejusdem generis rule cannot be stretched so far as to include such a room in the phrase "Other Similar Container". All of the items mentioned in section 47 (1) (b) refer to Containers of one sort or another. Clearly a storeroom could not ever properly fall within the ambit of that term.

23. The presumption did not arise. The judge's error in assuming that it did constitutes a material irregularity which rendered the conviction on the first charge unsafe and unsatisfactory.

24. Ground two is also clumsily phrased and reads, in relation to the second charge, as follows:

"The learned trial judge erred that in convicting the appellant for this charge he had failed to be impartial and had allowed the presumption on the 1st charge to influence his decision on this charge, irrespective of any assessment of the evidence of the appellant as truthful or otherwise.

Particulars

(1) the learned trial judge erred that he allowed the presumption in regard to the drugs to influence his decision in regard to 14 of the counterfeit notes which are the subject matter of this charge found in the storeroom; and

(2) the learned trial judge had failed to consider the evidence on each charge separately."

25. It must be the case if the judge was wrong to adopt the presumption that this would have influenced the finding concerning the counterfeit notes which were in the briefcase found in the storeroom. However, Mr Miller conceded that the conviction in respect of the counterfeit notes which were found on the Applicant are not affected by this and that the conviction in relation to these notes must stand. We agree.

26. We treat the application as the appeal. We quash the conviction on the first charge and set aside the sentence imposed in relation to it. As to the second charge the subject matter of the charge is amended to read that the counterfeit notes were limited to the 10 counterfeit Standard Chartered Bank HK$1,000 notes which were found on his person. To this extent the appeal is successful.

27. Sentence.

28. The appeal against sentence is also allowed to the extent that we order that the Applicant now be released from prison subject to any requirements of the Director of Immigration.

Representation:

Mr. D.G. Saw, S.C., (D.D.P.P.) (Ag.) and Mr. Albert Wong, S.G.C., D.P.P. for Respondent

Mr. J. W. Miller, instructed by D.L.A. for Applicant