The Queen v. Chan Chun Wah

CACC000418/1988

BETWEEN

Coram: Hon. Cons, V.-P Hunter & Power, JJ.A.

Date of Hearing: 30 March 1989

Date of Judgment: 30 March 1989

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J U D G M E N T

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Power J.A. :

1. The applicant faced two charges, one of possession of dangerous drugs for the purpose of unlawful" trafficking therein and one of possession of an apparatus fit and intended for smoking a dangerous drug. He was on each charge charged jointly with one CHAN Yam-chum.  The particulars of the 1st charge were that he and CHAN Yam-chum on l0th March 1988 at Room 604 Block 6, Tin Wan-Estate, Aberdeen, had in their possession a dangerous drug, namely 75.4 grammes of a mixture containing 4.83 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. Particulars of the 2nd charge were that he and Chan on the same day and at the same place had in their possession one tinfoil fit and intended for smoking a dangerous drug, namely salts of esters of morphine. The applicant was convicted on the 1st charge and acquitted on the 2nd charge. He now appeals against that conviction.

2. The facts that were accepted by the trial judge, as outlined by him in his Reasons for Verdict, were as follows. The police officer P.W.2, said that at about 3 p.m. on 10th March a police party including himself want to the premises in question. He said that when he was in the staircase keeping observation saw a man corning out of Flat 604. He immediately ran up. When he got up to the doorway he saw a man staring at him about 8 feet away. He declared his identity as a policeman. The man immediately ran off. He saw another man inside the flat at the doorway in the act of closing the iron grill. He immediately pulled the grill open and grabbed hold of the man. He identified this man as the co-defendant. On entering, he declared the identity of the police and the purpose of their presence. He then found a white envelope lying on the floor by the doorway on the left of the flat which he picked up. He opened that and he found 10 packets of suspected dangerous drug and a Po Chai phial. He also found a lighter and a tin foil placed over a piece of newspaper on top of a teapot. He said he then cautioned the co-defendant and the co-defendant said, "The white power was not mine, it belongs to Chan Chun-wah nicknamed 'Wu Lee Shu' or 'Fox Tree'." He said he then handed over the goods to another police officer who then searched the flat and found a re-entry permit and a tenancy card. The photo in the permit was one of the men who had just run off who was later identified as the applicant. He said that the other police officer found a key which fitted lock at the in entrance's iron grill.

3. The co-defendant Chan and the applicant both gave evidence each supporting the other in saying that Chan had gone to the premises, which were the family home of the applicant, to smoke dangerous drugs. The trial judge found each to be a witness wholly lacking in credit. He was in the end left with the evidence of the police officers, which I have set out above, and he accepted that evidence. He said finally:

"I am, satisfied beyond reasonable doubt that the Crown has proved the case against both D1 and D2 in respect of the 1st charge.

I am not satisfied on the balance of probability that either D1 or D2 has rebutted the presumption under S.46 or S..47 of the Dangerous Drugs Ordinance (Cap.134)

I  therefore, find both D1 and D2 guilty of the 1st charge and convict both of them in respect of the said joint 1st charge."

4. It is of Importance to note the observations which he. made as to the evidence of the applicant. He said:

"Indeed, D2's evidence is very inconsistent, full of contradictions and discrepancies on major points. He impressed me as not a witness of truth. He is also very evasive and hesitant in giving his evidence. I reject his evidence."

5. When referring to the presumptions under s.46 and s.47 the trial judge was, it seems clear, relying, as regards the applicant upon the presumption under s,47(1)(c). He did not, it is true, state how he applied that presumption. It, however, again seems clear that, having reacted the evidence of the applicant and of the co-defendant, he must have been satisfied (i) that the applicant being the tenant was the person in control of the premises, (it) that the presumption therefore arose, (iii) that, given his rejection of the evidence of both the applicant and Chan, there was no evidence to rebut it.

6. The grounds of appeal which have been argued by Mr. Alderdice are:

(1) that the trial judge failed properly to evaluate all the evidence in the case in determining that the applicant had failed to rebut the presumptions of law which operated against him; and

(2) that the trial, judge wrongly drew Inferences agains the applicant it concluding that he had failed to rebut those presumptions of law.

7. Mr. Alderdice referred to the case of R. v. LEE Tat-choi Mag.App. No. 304 of 1988 which emphasizes that the trial judge must clearly demonstrate that he has, dealt with and resolved difficulties in evidence when reaching his conclusions as to guilt.

8. It s the argument of Mr. Alderdice that, the witness having admitted knowledge of the existence of the dangerous drugs, the judge should have addressed himself in a specific way to the possibility that the witness had no intention to deal with them. Given the specific finding of the trial judge as to the credit to be given to the defence witnesses, was there any evidence for him to consider which might have assisted the applicant? The answer to this question must in our be in the negative. There seems to us to have been nothing that the trial judge could do, given the view he took of the defence evidence, other than to make a finding of guilt.

9. We were satisfied that the conviction was neither unsafe nor unsatisfactory and the application for leave to appeal against conviction is therefore dismissed.

Representation:

Miss L.M. Shine (Crown Prosecutor) for the Respondent

Mr. Gary Alderdice (D.L.A) for the Applicant