The Queen v. Yip Chi-yung

CACC000532/1986

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Fuad, J.A. & Mayo, J.

Date of Hearing: 20th November 1986

Date of Judgment: 20th November 1986

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This is an application for leave to appeal against a conviction for possession of dangerous drugs for the purpose of unlawful trafficking.

2. It is necessary to set out the circumstances in a little detail. The police were watching a flat. The owner of the flat was the 2nd Defendant. The Applicant is the 1st Defendant, who visited the flat. While the police were there they saw the 2nd Defendant come to the front door, knock and call out, and the 1st Defendant opened the door. The police then revealed themselves, arrested the two men and searched the premises. In the premises, in a chest of drawers, they found a quantity of drugs. One of the police officers, who took charge of this Applicant and was sitting with him on the bed, said that the Applicant made an oral admission that the drugs were his and that they had nothing to do with the 2nd Defendant. The police also found on the bed a bunch of keys. On the bunch of keys was a second bunch of keys consisting of two keys, which opened the front door and the grille of the flat. We are told, although it does not appear from the papers before us, that the 1st Defendant admitted that those were his bunches of keys. The 1st Defendant was wearing a pair of white shorts and no upper garment.

3. At the end of the case for the Crown there was no submission made. Deputy Judge Paul Chiu said it was conceded that a prima facie case had been made out, and he said that that was conceded because no submission was made. That of course was a fallacy. It was the duty of the judge himself to decide whether there was a case to answer, whether or not any submission had been made.

4. The Applicant gave evidence. He said that he had been with the 2nd Defendant, that they had agreed that they would meet later at a theatre, that the 2nd Defendant then went out leaving him in the flat, that the 2nd Defendant left his keys with him and that the reason why the 2nd Defendant left those keys was that if the 1st Defendant were to go out before the 2nd Defendant returned he would need the keys to secure the flat, the doors not being self locking.

5. The difficulty which we have experienced arises from the unfortunate manner in which the judge has expressed his reasons. However, the first point which is taken on the appeal - and one which I shall deal with shortly - is that the judge failed at the time that he passed sentence to give any reasons at all for his decision to convict. It is submitted that there is a duty on a judge to give reasons at that time and that s.80 of the District Court Ordinance does not detract from that duty. With respect, we are unable to accept that argument. The District Court was created to be a court of summary jurisdiction, and, even if there had been - and we are not convinced that there ever was - a duty on a judge necessarily to give reasons before passing sentence, s.80 clearly would override that duty: that section entitles a judge, and requires a judge, when he gives his verdict or so soon thereafter as may be to place his reasons on record, and that is all that is required of a District Judge.

6. The second ground, and the one that causes us difficulty, is that the judge appears to have devoted most of his judgment to considering the evidence relating to the presumption of possession which arose from the possession of the keys. However, he started by referring to the oral admission and, having recorded that the admission had been made, he said that he found the constable who gave evidence of the admission to be a truthful witness who was not shaken in cross-examination. The cross-examination had suggested not that the admission had in any way been forced out of the Defendant but that the constable had misheard the answer to the caution and that the constable had - presumably deliberately - not recorded in detail a denial of the charge which he alleged he had made. Once the judge was prepared to believe that constable and to disbelieve the Applicant as to the admission there was evidence upon which the judge was entitled to convict the Applicant regardless of any presumption. On a first reading it would not seem that he purported to do so. Mr. Halley has, however, read the penultimate paragraph of the Reasons for Verdict in a way which suggests that he did consider the matter in two parts: first that he was satisfied beyond a reasonable doubt on the totality of the evidence that the Applicant was in possession of the drug and then, in effect, that even if he had not been so satisfied he would have been persuaded to convict on the presumption. If that be correct - and we think that it is - then of course any failure by the judge in connection with the presumption becomes immaterial.

7. In respect of the presumption the judge had to consider the evidence of rebuttal and it is obvious that what he said is very far from clear. One passage in his judgment is as follows:

"His version that the reason for his keeping the 2 keys to the flat to his own bunch of keys did not ring true for if he were to lock up the flat to go back to his own flat, he would not need to do so as he was having temporary custody of the keys. A visitor would not stay in the host's flat with the keys when the host should be away.''

The probability is that what the judge meant by that was that, if the Defendant's own story were true, he would not have put the 2nd Defendant's keys on his own bunch of keys, but the problem there is that he is assuming that the keys were not necessary to be used if he went out, whereas we are told - and again this does not appear from the papers before us - that the keys were required to lock the door. In the second part of the paragraph at the end of the judgment he said this:

It could be that, if the case turned solely upon the presumption, we would have been forced to a different conclusion on the appeal, but we are satisfied that the judge found as a fact that the Defendant was in possession without the use of the presumption and that the presumption. was only used by him, as it were as a second line of defence.

8. In those circumstances we think that any objection there may be to the words that he used falls and that the application must be dismissed.

20th November 1986

Representation:

Duncan Percy for Appellant.

J.E. Halley for Crown.