The Queen v. Hor Wai-ming and Another

CACC000497/1984

Criminal Law - Sentences. Criminal Procedure Ordinance s. 109A; Juvenile Offenders Ordinance s. 14.

Care should be taken to implement the intention of the legislature that "young offenders" and "young persons" should only be sentenced to imprisonment if no other method of dealing with them is found to be appropriate.

IN THE COURT OF APPEAL

BETWEEN

Coram: Li, V.-P., Barker & Kempster, JJ.A.

Date of Hearings: 16th January, 1985

Date of Judgment: 16th January, 1985

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JUDGMENT

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Kempster, J.A.:

1. On the 29th of September of last year, following trial at Victoria District Court by His Honour Judge Baily, HOR Wai-ming and LI Wai-kuen were convicted on two counts of possessing dangerous drugs for the purposes of unlawful trafficking. Both were sentenced to five years imprisonment for the conviction involving the larger quantity of dangerous drugs and to one years imprisonment, concurrent, for the conviction involving the lesser quantity.  Both originally sought the leave of this Court to appeal against their convictions and, alternatively, against their sentences. At the commencement of the hearing this morning, however, Hor was given leave to abandon his application to appeal against conviction.

2. The learned judge found that on 4th July 1984 just before 11 o'clock in the evening police officers had arrested the applicants outside a flat in Hennessy Road, Wanchai. Hor was carrying the keys to the flat and an envelope inside which was found the larger quantity of dangerous drugs described in the first charge. Li was carrying a plastic bag in which was found a sealed box containing the lesser quantity of dangerous drugs described in the second charge together with paraphernalia suitable for packaging drugs for resale. The learned judge did not believe the evidence which Li had given to the effect that the dangerous drugs held to have been found in the plastic bag had, in truth, been found in a drawer in the flat. By necessary inference, as we shall explain, he did not accept Li's evidence that he was unaware of the contents of the bag either. By reason of the physical proximity of the applicants at the time of their arrest outside the flat, which was not furnished as a habitation, and of the apparently related contents of the envelope found in the possession of Hor and of the bag which Li was carrying the learned judge held that all the dangerous drugs found after arrest were in their joint possession for the purpose of a joint enterprise and that, therefore, both were guilty on both charges. He did not purport to rely on the deeming provisions of section 2(2) of the Dangerous Drugs Ordinance (Cap. 134).

3. Li, by his counsel, contends that his convictions were unsustainable for want of admissible evidence, as asserted in his original grounds of appeal, and, by what are called "Perfected Grounds", expands on this thesis with particular emphasis on the testimony given by Li at trial and upon the admitted failure of the learned judge to refer to the evidence given as to a move to a new home and to the ownership of all relevant materials and substances by Hor.

4. In our view the submissions made on behalf of Li are unsustainable in circumstances where the trial judge has expressly disbelieved his evidence in relation to the finding of dangerous drugs. In a case of so small a compass we cannot conceive that a judge would have accepted his evidence on one critical issue when he had disbelieved it on another.

5. Possession in law involves at least control and also knowledge. There was no dispute as to the control of one or other of the applicants in relation to the drugs which were the subject matter of the two charges. There was dispute as to knowledge. However, in the context of dangerous drugs, section 47(1)(a) of the Dangerous Drugs Ordinance is specific:

"Any person who is proved to have had in his possession or custody or under his control anything whatsoever containing a dangerous drug shall, until the contrary is proved, be presumed to have had such drug in his possession.''

Both applicants were subject to such presumption in relation to the quantities of drugs found in their respective control and clearly the learned judge did not find that presumption displaced on the balance of probabilities.

6. As regards joint control on both charges this was a matter for inference in the light of the considerations to which he and we specifically have referred subject to the required burden and standard of proof. Reference may be made, by way of analogy, to the case, not referred to at the Bar, of R. v. Cavendish⁽¹⁾. The headnote of which reads:

"For a man to be found to have had possession of goods, something more must be proved than that the goods were found on his premises; it must be shown either, if he mere absent, that on his return he became aware of them and exercised some control over them or that the goods had come, albeit in his absence, at his invitation or by arrangement with him."

This case involved six stolen drums of oil which had been delivered into the yard of the appellant who was away at the time. When questioned by the police on his return he denied that he knew anything about them. He was charged with receiving the oil knowing it to be stolen. At the end of the prosecution case a submission was made that there was no case to be left to the jury that the appellant had possession or constructive possession of the oil or that he knew that it was stolen. That submission was rejected and it was held by the Court of Appeal, consisting of Lord Parker, C.J., Winn and Widgery JJ. (as they then were) that it had properly been rejected since the surrounding circumstances would have entitled the jury to draw inferences adverse to the appellant as to his knowledge. In the instant case the circumstances upon which the learned judge relied fully entitled him to infer so that he was satisfied so as to be sure that the two had been apprehended at a time when they were on a joint enterprise involving trafficking in drugs and in joint possession of all drugs and paraphernalia found. We do not overlook the presumption that arises from section 47(3) of the Dangerous Drugs Ordinances that:

"Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

7. There is nothing which vitiates the conviction of Li on either charge and his application for leave to appeal against these convictions is accordingly dismissed.

8. As to sentences Hor was aged 16 at the date of conviction and Li 15; therefore a "young person" within the meaning of the Juvenile Offenders Ordinance, Cap. 226. Although, contrary to what was stated by the learned judge, Hor did not have a clear record he was a "young offender" to whom the provisions of section 109A of the Criminal Procedure Ordinance, Cap. 221 applied. Sub-section (1) of that section reads:

"No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition."

Section 15(1) (1) of the Juvenile Offenders Ordinance permits a "young person" to be sent to prison but section 14 of that Ordinance provides:

"Where a child or young person is found guilty of an offence punishable in the case of an adult with imprisonment, and the court considers that no other method in which the case may be dealt with is suitable, the court may order that he be detained in a place of detention."

To put it no higher a corresponding obligation is placed on the court in considering a sentence of imprisonment on the "young person". Thus it is reasonably clear that the legislature is concerned that sentencing judges should be very chary of committing young men like these two applicants to prison. Of course, the learned judge here will, we are sure, have been aware of the provisions of section 11(3) of the Juvenile Offenders Ordinance which provides that:

"A young person sentenced to imprisonment shall not be allowed to associate with adult prisoners."

9. The learned judge had, we think, the general tenor of section 109A in mind, though he did not specifically refer to it, because he ordered reports as to the applicants' medical condition, suitability for detention and training and general background so that he could properly consider the range of alternative sentences open to him. In considering the reports, however, we are not satisfied that he heeded the concern and intention of the legislature as disclosed in the ordinances already referred to. Having ourselves read these reports and bearing in mind that an order that a young man be made the subject of a period of training must almost invariably result in a period of about 3 years supervision at the instance of the Commissioner after release, which could well mean that these young men would have a check on their activities for longer than 5 years, we think it appropriate to allow the applications to appeal against sentence and in each instance to treat this as the hearing of the appeal and to substitute for the sentences of imprisonment on each count, running concurrently, orders that each young man be detained in a training centre.

(1)    [1961] 2 All E.R. 856

Representation:

Laurence Lok (Hampton, Winter & Glynn) for D1

Leo Remedios Hasting & Co.) for D2

Moorfoot for Crown