The Queen v. Cheung Sing Chung

CACC000041/1991

BETWEEN

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Coram: Hon. Fuad, V.-P., Clough & Macdougall, JJ.A.

Date of hearing: 16 July 1991

Date of judgment: 16 July 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial by Mr. G.P. Muttrie sitting as a Deputy Judge in the District Court of having in his possession on 1 August 1990 a dangerous drug namely 26.85 grammes of a mixture containing 25.14 grammes of salts of esters of morphine for the purpose of unlawful trafficking. He now applies for leave to appeal against that conviction. This was a casein which the applicant admitted that he was in possession of the drug but denied that his possession was for the purpose of unlawful trafficking.

2. The agreed facts were that two police officers on anti-narcotics patrol in San Po Kong observed the applicant behaving in a suspicious manner in a street and then to enter a video games centre. The officers went forward and searched him. They found in his underpants one plastic packet containing the quantity of drugs to which we have already referred.

3. In seeking to rebut the presumption that he had the packet of dangerous drugs in his possession for the purpose of unlawful trafficking, the applicant testified that he was an addict and had bought the drugs for $5,500 from one Tax Chai in the basement of the Palace Theatre, that it was sufficient to last him for a month and that he had just been walking around and had decided to play some video games before returning home.

4. According to the applicant he had received on the previous day $4,000, being half his monthly salary. His practice was always to carry all his money with him in a carrier bag instead of banking it. On this occasion he had been carrying $6,000. This enabled him to pay for the drugs he had just purchased.

5. Mr. McCoy, who appeared before the applicant in this court but not in the court below, submitted that the evidence of the applicant was inherently credible and that the judge was wrong to take judicial notice of those matters. In seeking to support this contention he cited R. v. CHAU Kam-wah MA 1347/90. There, however, the magistrate had made assumptions which clearly went far beyond the matters of which the deputy judge took judicial notice in the present case. We do not think that that case is of any real assistance to us. A judge may rely on his own local knowledge within reasonable and proper limits. The knowledge that the deputy judge applied in the present case was of quite a general nature. We do not think that he was wrong to use this knowledge.

6. Mr. McCoy was also critical or the following observation made by the deputy judge in his Reasons for Verdict:

"It seems unlikely to me that a simple addict would want to take the risk of wandering about in San Po Kong and decide just to go and play a few video games, with an ounce of No. 4 heroin concealed on his person. The defendant's story on that just does not ring true."

7. He submitted that the actions of a drug addict should not be assessed on the basis that he has the same desire for self-preservation as that possessed by other people. In other words an addict's actions should not be judged in the light of those of ordinary people. We do not accept Mr. McCoy's submission. We have no reason to believe that drug addicts do not possess a very strong desire to avoid detection by the authorities. Indeed, the almost invariable explanation given by addicts for having bought a large quantity of drugs at one time rather than making frequent, smaller, purchases is a desire to reduce the risk of police detection. Moreover, it is plain from the evidence of the applicant himself that he was worried about carrying such a substantial quantity of dangerous drugs on his person in a public place.

8. Nor do we accept that, in deciding whether a defendant has rebutted the presumption, the sole test is whether the content of the explanation given by him is inherently credible. There is, for example, nothing inherently incredible in an addict buying a sufficient quantity of drugs to last him for a month. Indeed, if it were otherwise, this explanation for possession of a quantity sufficient to give rise to the presumption of possession for the purpose of unlawful trafficking would not be advanced by defendants with the monotonous regularity that it is. If the test were that a court must accept that where the basic content of an explanation is not inherently incredible the presumption is automatically rebutted, then it would be necessary to acquit of the greater offence of possession of a dangerous drug for the purpose of unlawful trafficking every defendant who advanced such an explanation. Plainly this cannot be correct.

9. Where a defendant gives evidence in an attempt to rebut the presumption, it is for the fact finding tribunal to determine whether the defendant has persuaded it that it is more probable or not that he personally did not have the drugs for the purpose of unlawful trafficking, not that the circumstances he related to the court are themselves of an inherently believable nature. The tribunal which hears and sees the defendant give his testimony decides each case not only on a consideration of the particular circumstances of possession related to it by the defendant, but also on its assessment of that particular defendant's credibility. An unpersuasive witness cannot expect to succeed in rebutting the presumption simply by relating a story which is plausible in itself.

10. In the present case we are unable to say that the deputy judge was wrong to come to the conclusion which he did. Indeed, in the light of the evidence before him, we are not at all surprised that the applicant was convicted of the greater offence. In the circumstances therefore the application for leave to appeal against the conviction is refused.

Representation:

Mr. S.R. Bailey for Crown Prosecutor

Mr. G.J.X McCoy instructed by M/S William Au & Co. for Applicant