The Queen v. So Yiu Chung

CACC000181/1986

IN THE COURT OF APPEAL

BETWEEN

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

Date of hearing: 16th July 1986

Date of delivery of judgment: 16th July 1986

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JUDGMENT

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Penlington, J.

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

2. The facts of the case were simple. A Police party arrested the applicant at the car park of the Sam Tung Uk Village. They approached him and told him that they wished to search him in connection with dangerous drugs. The applicant, having exchanged some words with the Policy party, then punched Sgt. 1081 on the chest and made off. He was however caught and there was a struggle. That was the basis of the charge of assaulting a police officer in the execution of his duty.

3. Some keys were found on him and they went to his home where one of the keys was found to fit a bedroom in which there was a bag containing 745 grammes of heroin.  There was evidence from the police officers that when the drugs were discovered the applicant admitted they were his. The judge was satisfied that the applicant was in possession of the keys for this room and that therefore the presumption under section 47 of the Dangerous Drugs Ordinance operated against him.

4. There were two witnesses, whose evidence might have rebutted that presumption. One was in fact a prosecution witness who was not made hostile but whose evidence was in favour of the applicant. He was disbelieved by the trial judge. The applicant himself also gave evidence that the cabinet in which the drugs were found had been moved into his room from another room which was occupied by a sub-tenant. He knew nothing about these drugs and had been framed by the Police.

5. Various other paraphernalia such as scales indicating not only possession but trafficking in drugs were also found in the flat.

6. This is a pure question of fact where the trial judge has heard the evidence, come to the conclusion that the presumption has not been rebutted and that the applicant was in possession of drugs. The amount involved was such that-the presumption that he was in possession for the purpose of trafficking also arose but the other paraphernalia found in the flat would clearly have pointed to that even without the presumption. We see no reason why we should disagree in any way with the conclusion of fact that the trial judge came to and the application for leave to appeal is refused.

Representation:

Applicant in person.

Mr. A. A. Bruce, Counsel for Respondent.