The Queen v. Au Cheuk-por

CACC000465/1984

IF THE COURT OF APPEAL

BETWEEN

________

Coram: Sir Alan Huggins, V.-P., Cons and Fuad, JJ.A.

Date of Hearing: 3rd January 1985

Date of Judgment: 3rd January 1985

___________

JUDGMENT

___________

Fuad, J.A.:

1. The applicant, AU Cheuk-por, was convicted in the District Court on the 4th September 1984 of two offences, and sentenced on the 19th of the same month. For the main offence of possession of dangerous drugs for the purpose of unlawful trafficking he was sentenced to 5½ years' imprisonment, and a sentence of 1 month's imprisonment consecutive to that sentence was imposed on his conviction for assaulting a police officer in the due execution of his duty.

2. The applicant filed his own notice of appeal against conviction on the 11th October. This could have been rejected as a notice since it disclosed no grounds whatever. However he has since retained the services of Mr. Albert Yau, who has drafted proper grounds of appeal.

3. When the application was opened, Mr. Yau told us that the applicant no longer wished to appeal against his conviction on the lesser count of assaulting a police officer and, in addition, did not wish to pursue his application for leave to appeal against the sentence on the main charge.

4. The facts of the case, as they affect the applicant, are very simple. On the 10th December 1983 a number of police officers, acting upon information, were watching vehicles in Kowloon City Road. At about 6:20 p.m. they saw a "Honda" saloon car being driven slowly along Kowloon City Road towards Sze Chuen Street. The vehicle came to a halt near the junction of Kowloon City Road with Sze Chuen Street and the waiting police officers saw two men and a woman sitting in the car.

5. The applicant was the 2nd defendant at the trial and he was sitting on the rear seat. In the front, the driver was the 1st defendant and next to him was the woman passenger, the 3rd defendant.

6. The 1st and the 3rd defendants were also convicted of various offences. So far as we know, the 3rd defendant, the woman, never appealed and the 1st defendant did originally seek to appeal but abandoned his application before the hearing today.

7. To return to the "Honda" vehicle, the police officers tried to block the "Honda” by their own police van but the car was driven off in a hurry and shortly afterwards collided with a taxi and came to a halt.

8. All three defendants got out of the car and tried to run away, the 1st and the 3rd being caught immediately and the applicant after a short chase. The applicant struck the officer who was trying to arrest him and this was the subject of what I have called the lesser charge.

9. In the back seat of the "Honda", behind the driver, was found a plastic carrier bag. In the bag there was another paper bag and in that bag there were no less than 20 small packets which turned out to consist of dangerous drugs. The total weight of the mixture was something over 205 grammes and the total weight of the drugs, in this case salts of esters of morphine, was just over 54 grammes.

10. The other piece of evidence which concerns the applicant was that when premises that had been leased by the 1st defendant were searched, in one of the rooms there was found the applicant's re-entry permit. In the premises there was a table balance containing just a trace of salts of esters of morphine, a sealing machine and a plastic container which indicated that drugs had been packaged there.

11. After the close of the prosecution case a submission was made on behalf of the applicant that there was no case to answer. This was overruled and the applicant elected not to give any evidence and to call no witnesses.

12. The learned District Judge accepted the prosecution evidence and rejected the testimony of the 1st and the 3rd defendants who had given evidence. He concluded his Reasons for Verdict with the following paragraph:

"I was entirely satisfied that the drugs were found in the bag on the rear seat of the car. I was satisfied beyond a reasonable doubt that the drugs were in the possession of the defendants. I rejected the evidence of Dl and D3 when they denied this. The defendants had failed to rebut the presumptions against them and were accordingly convicted."

13. Mr. Yau, on behalf of the applicant, urged upon us the contention that there was no, or insufficient, evidence which warranted the Judge's finding that the applicant was in possession of the dangerous drugs.

14. Despite his careful and cogent arguments, we do not accept that this is so. Here was a person, sitting in the back of the car which turned out to be a stolen car, who attempted to escape when the police eventually managed to stop the car and tried to arrest him. He went further and assaulted the arresting police officer. On the same seat on which he was sitting - so he must have been very close to it indeed - was the plastic bag which was later found to contain the drugs.

15. He chose not to give any explanation for his presence in the vehicle on that occasion in the company of the other defendants, or for his conduct in trying to run away.

16. If this had been all it may be that in view of the fact that the vehicle was a stolen one, even in the absence of evidence given by the applicant, the Court might have come to the conclusion that the facts proved were consistent with the absence of joint possession on the part of the applicant; he might have been running away to escape the consequences of being found in a stolen car or indeed, if he did not know it was stolen, in a car which he knew had tried to evade the police and had only come to halt by crashing into the taxi.

17. However, we consider that the evidence of the finding of his re-entry permit in premises leased by the 1st defendant in which, clearly, some activity in relation to packaging drugs had been going on, indicated that he had some association with the 1st defendant in the drug business - in the absence of any explanation.

18. In these circumstances we do not think that the learned judge was wrong in drawing the inference (for it was an entirely reasonable one) that the applicant was in joint possession of the bag which contained drugs, and on a Joint enterprise with the other two defendants in carrying the drugs in the vehicle. And, therefore, we think that there is no ground for disturbing the Judge's finding that the defendant was proved to have been in joint possession of the bag.

19. Mr. Yau has also complained that the Judge did not deal adequately with the statutory presumptions contained in the Dangerous Drugs Ordinance, Cap. 134.

20. It is true that the Judge said very little about the presumptions and it would have been better, perhaps, had he said rather more. But we reached the conclusion that in the circumstances of this case he said enough. When the Judge said "I was satisfied beyond a reasonable doubt that the drugs were in the possession of the defendants", from what went before, it seems clear to us that he was in reality making a finding that the plastic bag itself was in the joint possession of all three defendants.

21. Once that was found, the presumptions for which provision is made by sections 46 and 47 of the Dangerous Drugs Ordinance come into play, as a matter of law and not as a matter of discretion. We consider that what the Judge was plainly deciding was that since the applicant had been proved to have had the bag containing the dangerous drugs in his joint possession, and nothing to the contrary had been proved, he was proved also to have had the drugs it contained in his possession by virtue of section 47(1) of the Ordinance. Moreover, by virtue of sub-section (3) of section 47, the applicant, having been proved to have had the dangerous drugs in his possession, was presumed to have known the nature of the drugs. Then, having regard to the quantity of dangerous drugs found, the presumption under section 46 applied and the applicant must be presumed to have had the dangerous drugs in his possession for the purpose of trafficking in them.

22. We find no grounds for interfering with the conviction. Where the applicant, on facts such as these, chooses not to give evidence he cannot complain if a reasonable inference is drawn by the Court, nor can he complain if that inference is drawn more readily by virtue of the fact that he elected not to go into the witness box and submit himself to cross-examination.

23. For these reasons we refuse the application for leave to appeal against conviction.

Representation:

Mr. Albert Yau (Messrs. H.M. So & Co.) for the Applicant.

Mr. B.C. Smith for Crown/Respondent.