The Queen v. Liu Hon Wing (D2) and Another

CACC000309/1985

BETWEFN

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Coram: McMullin, V.-P., Yang & Silke, JJ.A.

Date of hearing: 27th November, 1985.

Date of delivery of judgment: 27th November, 1985.

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JUDGMENT

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Yang, J.A.:

1. At about 6 a.m. on the 17th March, 1985, a group of police officers led by Senior Inspector Lam went to a wooden hut at the Hon Man Tuen in the New Territories. On entry they found D1 and D2. D1 was the mother of D2 and D3. D1 was found sleeping in a room and D2 in a cockloft. D3 was not there. After a brief search 3 bottles of prepared opium and opium water were found in the room where D1 was sleeping. D1 gave evidence and was acquitted. D2 also gave evidence but was convicted, based mainly on a presumption provided for in Section 47(1) of the Dangerous Drugs Ordinance. The only evidence against D2 was his mere presence in the hut. There was no evidence that he had keys to the premises. There was no evidence of any of his clothes being found on was no the premises. There was no evidence to show that he was in control or in possession of the premises in question. In the circumstances we are of the view that the presumption in Section 47(1) does not arise. Indeed Crown Counsel Mr. Dale, very commendably, does not seek to support the conviction. That being the case, and without going into the other grounds of appeal advanced by Mr. Cheng Huan on behalf of D2, we would allow D2's application, treat the application as an appeal and quash the conviction. The sentence is set aside.

2. As to D3, who was the brother of D2, he was found at an address at Kwai Hing Estate. According to the police evidence he made a verbal confession to the effect that he was the owner of the drugs found at the wooden hut at Hon Man Tuen. There was also evidence from the police witnesses that whilst at the wooden hut he made another verbal confession to the effect that the drugs belonged to him. It was argued on behalf of D3 that the verbal confessions made at Kwai Hing Estate and inside the hut should not have been admitted by the trial judge. It was further argued that the evidence did not make it entirely clear what it was that D3 admitted. Then it was argued that the judge failed to consider whether the confessions were voluntary. Without intending to show any disrespect to counsel for D3 before us, we do not propose to deal with his arguments at any great length. Suffice it to say that on the issue of voluntariness, we follow the judgment in the case of Ajodha ⁽¹⁾, at 202B, where Lord Bridge had this to say -

"On the face of the evidence tendered or proposed to be tendered by the prosecution, there is no material capable of suggesting that the statement was other than voluntary. The defence is an absolute denial of the prosecution evidence. For example, if the prosecution rely on oral statements, the defence case is simply that the interview never took place or that the incriminating answers were never given; in the case of a written statement, the defence case is that it is a forgery. In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge's decision. "

3. There was another ground of appeal which caused us some slight worry and this is the use of the word "likely" in a passage in the Reasons for Verdict where the learned trial judge said this -

"I found from the context of third defendant's admissions that they were likely to be true. "

It was argued that by these words, the judge had applied the wrong standard of proof. We accept that this was an unhappy word to use but having read the Reasons for Verdict as a whole and having given it the most anxious consideration we are of the view that in the circumstances the criticism is not justified.

4. For these reasons, we dismiss the 3rd Defendant's application.

(1) (1981) 2 All E.R. 193

Representation:

Mr. Cheng Huan (Y.K. Poon & Co.) for D2 and D3

Mr. C.J. Dale, Crown Counsel for Respondent