The Queen v. Shek Hung-chi

CACC000166/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 20th November 1985

Date of Judgment: 20th November 1985

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JUDGMENT

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Kempster, J. A. :

1. Any person who is proved or presumed, by admission or otherwise, to have had in his possession more than five packets containing either alone or contained in a preparation, mixture, extract or other material a salt of an ester of morphine is in what we might well describe as a parlous situation when charged under section 7(1) of the Dangerous Drugs Ordinance since, until the contrary is proved, that person is presumed to have had the dangerous drug in his possession for the purposes of trafficking therein (Section 46). Section 7(1) reads:

"No person shall have a dangerous drug in his possession for the purpose of unlawful trafficking therein, whether by him or some other person. "

2. The applicant before us, SHEK Hung-chi, was convicted by a jury on 11th April of this year of possessing a dangerous drug for the purpose of unlawful trafficking and he applies to us for leave to appeal against that conviction. He does so in circumstances where one of the facts agreed between counsel on his behalf and counsel instructed on behalf of the Crown was that he, together with his wife, was in possession, custody and control of certain premises wherein were found three bags certified to contain respectively 453,76 grammes of a mixture containing salts of esters of morphine, 456.62 grammes of a mixture containing salts of esters of morphine and 454 grammes of a mixture containing salts of esters of morphine. The whole contents was valued at HK$??150,000.

3. The presumption to which we have already alluded under section 46 therefore came into play together with the presumption arising under section 47(1)(a) that "any person who is proved to have had in his possession or custody or under his control (a) anything containing a dangerous drug; - shall, unless the contrary be proved, be presumed to have had the drug in his possession. " It was incumbent upon the applicant, on the balance of probabilities, to rebut the presumption that he had these bags in his possession for the purposes of trafficking. When the section says "for the purposes of trafficking therein" one must bear in mind the provisions of the section under which he was charged, "trafficking therein, whether by him or some other person".

4. There is also a presumption, which has not been the subject of argument, that being in possession of the dangerous drugs he was aware of their nature. At the trial, it appears to us on reference to the transcript of evidence, the principle contest arose in relation to the applicant's knowledge of the nature of the contents of the bags which were found in a drawer under his bed by police officers when they entered the flat which he and his wife occupied on 29th September 1984. He said in evidence that he was storing them for a friend for reward having no real knowledge of their contents but believing them to contain what he described as Chinese herbs or medicine. He also suspected, he said, that the packages had been the subject of theft. The final questions put to him by the Crown in cross-examination have been referred to us by Mr. Plowman, who has said all that could be said on his behalf:

It is submitted, incorrectly in our view, that this line of questioning suggests that the Crown was adopting the attitude that the applicant was not guilty of the offence charged but only of the lesser offences of possession under section 8, of which the jury could have found him guilty as an alternative, or of being an occupier storing dangerous drugs within the meaning of section 37(1)(a).

5. Criticism is made of portions of the summing-up where the learned judge first of all said:

"Members of the jury, whether or not there is a man nicknamed Fa Kwok Chai (he was the man on whose behalf the applicant said he was storing the dangerous drugs) is a matter of fact entirely for you on which to infer or draw a conclusion. In my view, and this is a personal observation, even if there were such a person as Fa Kwok Chai, his existence would not affect the charge against the defendants which is based on possession and not on ownership of the dangerous drugs in question. "

and subsequently:

"You would have no difficulty, and it is a matter entirely for you, in coming to a decision because there was no attempt by the defendants to displace the presumption of unlawful trafficking. "

These two directions we find essentially right because the evidence given by the defendants went in great part to their knowledge and the relevant presumption and even on his own account of the matter the applicant was trafficking. It has been held by this Court in The Queen v. DIU Lap-nin⁽¹⁾ that storage constitutes "dealing" within the meaning of section 2(l) of the Ordinance which reads:

" 'Trafficking' in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly;"

6. It follows that the application to appeal against conviction must be dismissed.

(1) Crim. App. No.1439 of 1983 (unreported)

Representation:

Mr. Plowman (Tang & Knight) for applicant

Mr. Boucaut for D.P.P./respondent