The Queen v. Kwok Ming

CACC000428/1984

IN THE COURT OF APPEAL

BETWEEN

Coram: Roberts, C. J.,  McMullin, V.-P., Silke, J. A.

Date of hearing: 7th November, 1984.

Date of judgment: 7th November, 1984.

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JUDGMENT

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McMullin, V. -P. :

1. The applicant KWOK Ming was convicted in the District Court on a charge of possession of dangerous drugs for the purpose of unlawful trafficking.  The evidence for the Crown was briefly to the following effect. A woman KWOK Wong-sze was searched on the 25th February at about 2 o'clock in the vicinity of Chuk Yuen Village. She was found to be in possession of a small quantity of dangerous drugs. Subsequently she was led to her home and upon entry the police party found therein three other persons who became respectively the 2nd, 3rd and 4th defendants.  The lady who was first apprehended was the mother of the 3rd defendant and the husband of the 2nd defendant. The 2nd defendant was the tenant of the premises.

2. Upon search a quantity of drugs was discovered within the premises themselves.  These were distributed at various places therein, a small quantity being found in an overcoat on the back of the front door and another small quantity and some plastic bottles in something described as a "clothes cover".  There was also a quantity of drugs found in a green iron container under a double bunk.  The largest quantity was however found within a locked wardrobe to which only the 1st defendant had a key. There was also found a certain amount of equipment.

3. It was never in dispute that the relevant presumptions under the Dangerous Drugs Ordinance in respect of knowledge of possession for the purpose of trafficking had been raised against all defendants, I should mention that the 4th person found in the room was a girl friend of the 3rd defendant who was subsequently acquitted.  At the present time the only defendant in whom we are interested is the 3rd defendant, the son of the 1st defendant, who applies for leave to appeal against his conviction.

4. It is common ground again that all three defendants had keys to the premises and it was on the basis of his possession of such a key that the relevant presumptions were raised against the present applicant.

5. The three defendants subsequently made statements in which they denied possession of the drugs.  They did not give evidence at the trial.  There was no submission of "no case" and the evidence closed with that which had been led by the Crown.

6. The District Judge was addressed thereafter and it was contended that the evidence put up by the Crown itself was sufficient to rebut the presumptions raised against all defendants.

7. Four factors were particularly relied upon by the defense in this connection. The first was that when the police arrived the door of the premises was open; secondly, that a large proportion of the drugs were found in a locked drawer of the wardrobe to which only the first accused had a key; thirdly, that there were non-drug exhibits found in various positions throughout the premises and lastly, that a black jacket in which was found some of the drugs was old and the ownership of it had not been proved.

8. In referring to this argument, the judge said,

"They submit that the evidence of the Crown by itself is sufficient to rebut the presumption.  This is a novel argument and is one which I consider should have been advanced at the close of the Crown case."

We do not see that such an argument could reasonably have been advanced at the close of the Crown case but that is not the principal point now at issue. In referring to the suggestion that the Crown's own evidence might be capable of rebutting the relevant presumptions as "a novel argument", we are left with the suspicion at least that, whether by momentary aberration or for want of that knowledge, the District Judge may have been unaware that the law in this regard is not the same in Hong Kong as that which prevails in the United Kingdom.  In Hong Kong where the defendant has made a statement under caution and the statement is of a wholly self-serving nature that does not constitute evidence for the defendant.  In Hong Kong it is established that such a statement, when put in by the Crown, becomes evidence for all purposes in the case.  The statement of the 3rd defendant, the present applicant, was put in and became an exhibit in the case.  It is in general terms a denial of possession of any of the drugs.

9. Mr. Alderdice, upon the appeal, took two points.  The principal point being made is that the judge simply failed to evaluate the statement made by the 3rd defendant, the present applicant, while he was under arrest. The judge said simply:

"All accused subsequently made cautioned statements in which they denied knowledge of the existence of the drugs."

It may be however that, if he misapprehended the state of the law in respect of the weight which may be given to such a statement, he did not evaluate the contents of the statement in the light of the law but simply dismissed it from any consideration whatsoever as a self-serving statement.

10. Mr. Alderdice argues that that in itself is a sufficient reason for setting aside the conviction because, as he puts it, we cannot be sure, if the judge was under a misapprehension as to how he should deal with such a statement, that, had he dealt with it properly and considered it fully, he would necessarily have come to the same conclusion and convicted the defendant.

11. We are not prepared to say that circumstances could never arise in which the Crown, perhaps incautiously, having put in a statement made by a defendant would find that it had supplied to the Court material of a sufficiently persuasive character, taken with the rest of the Crown's evidence, to rebut the presumptions raised under the relevant sections.

12. Mr. Alderdice submits that this possible error is one of so grave a character that the proviso should not be applied.  We cannot take that view. The judge had considered the four factors in the prosecution case which had been relied upon by the defense as constituting what was said to be sufficient of itself to rebut the presumptions.   Those four factors, to which I have already referred, were regarded by him as being of insufficient weight to have that effect.  That would leave only the cautioned statement as a possible source of material upon which he could have relied in forming his opinion as to whether the presumptions had been rebutted. Mr. Alderdice has striven to persuade us that the statement is not a mere denial, but is sufficiently elaborated, as to details of what was discovered within the premises, to make it possible that, had he been aware that he was entitled to give it weight, it might have persuaded the District Judge to a different conclusion. In all events, he says, we cannot be certain that that would not have been the case.

13. We are satisfied, however, that the nature of this statement is in a fact a bare or mere denial and that the proviso should be applied.  We are satisfied that even if he was under any such misapprehension, the District Judge must inevitably have found that it was of insufficient weight to dislodge the presumptions.

14. One final matter I should refer to is the fact that the judge had apparently under a misapprehension of fact in that he thought that there was evidence which possibly could favour the defendant. It is said in the course of the reasons for verdict that, in the course of the police search, the 1st defendant had admitted being the sole owner of all the drugs found within the premises.  That might have been something which Counsel for the applicant could have relied upon in addition to the matter which he argued before this Court.  In the event we have carefully consulted the record of the proceedings and it would appear that that no such evidence was given. In fact the only reference made by any of the police witnesses to that matter goes the other way. This suggestion was put to him and his answer was a denial that the 1st defendant had ever claimed the sale ownership of all the drugs.  The application is refused and the appeal against conviction is dismissed.

Representation:

Mr. G. Alderdice (Haldane Midgley & Co. ) for Applicant.

Mr. Jenkyn-Jones for Respondent/Crown.