The Queen v. Chan Kwan Shui

1986, No. 178
(Criminal)

IN THE COURT OF APPEAL

________

BETWEEN

_________

Coram: Cons, V-P, Kempster, J.A. and Penlington, J.

Date of Hearing: 15th July 1986

Date of Delivery of Judgment: 15th July 1986

___________

JUDGMENT

___________

Penlington, J. :

1. This is an application for leave to appeal from the decision of Judge Blackwell in the District Court whereby he sentenced the Applicant to four years imprisonment on a charge of possession of dangerous thugs for the purpose of unlawful trafficking.

Conviction

2. The evidence and the facts found by the trial judge were simple. The applicant was jointly charged with another man who had been observed coming from a building carrying 3 packets. He entered a car which was driven by the applicant. It was followed by Police officers by whom it was stopped, whereupon both the applicant and the passenger got out of the car and ran away. They were pursued and apprehended by the police party who took them back to the car, in which the three packets were found on the floor where they have been dropped by the passenger. They contained heroin.

3. It was not in dispute that the applicant was the driver of the car and it was the Crown's case that the presumption under section 47 of the Dangerous Drugs Ordinance came into play in that he had control of the car and therefore control of its contents,  including these packets. Section 47(4) provides that the presumptions arising from that section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug. Mr. Hemmings, for the applicant, submits that because there was clear evidence, accepted by the judge, that the actual physical possession of the packets was with the passenger at all times, the presumption did rot apply to the applicant and without it there was not enough evidence to prove the charge against him. The presumption certainly applied in respect of the passenger but there was nothing in Section 47 of the Dangerous Drugs Ordinance to indicate that it applied to another person who might be in joint possession. He further submitted that even if the presumption did apply it had been rebutted by that same evidence of possession by the passenger.

4. The Crown also relies on the evidence that the applicant ran away when the car was stopped as indicating that he knew what was contained in the packets. As against that it was suggested for the applicant that he may have had a guilty conscience not about drugs but about the car which had apparently been already sold (and paid for) as scrap.

5. We are of the view that the presumption under section 47 of the Dangerous Drugs Ordinance did arise in that the applicant was in control of the car in which the drugs were shown to be. In that circumstance alone the physical possession of the other person might well have been sufficient to rebut the presumption.  However here there was the further evidence of the actions of the applicant when the police party came up to him. In all the circumstances the trial judge was entitled to come to the view that the presumption had not been rebutted.

6. The application for leave to appeal against conviction is therefore dismissed.

Sentence

7. Counsel for the applicant also indicated that he could not submit that the sentence of four years received by the applicant was manifestly exoessive and it is clearly within the guidelines laid down in Chan Chi-ming v. R. ⁽¹⁾ He does, however, put forward that the 1st defendant, who absconded while on bail and was subsequently arrested, pleaded guilty to the charge and received a sentence of only three years imprisonment.

8. Where joint defendants are sentenced by different judges, the fact that there is a disparity between their sentences is not a ground for interference in itself ⁽²⁾. Here the 1st defendant has received a substantial discount for his plea of guilty, even though it was in the face of very strong evidence. However we do not feel that the difference is such as to give rise to a sense of grievance and we consider that the sentence passed was perfectly proper. The application for leave to appeal against sentence is also therefore refused.

(1)    (1979) H. K. L. R. 491

(2)    R. v. So Hung Lee, Cr. App. 408/85

Representation:

Mr. J, Hemmings (K. C. Chan & Co.) for the Applicant

Mr. D.S. Kilgour, Counsel for the Respondent