Cheng Gee v. The Queen

CACC000432/1976

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Coram: Huggins, J.A.

Date of Judgment: 13th May 1976.

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JUDGMENT

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1. The Appellant was charged before the magistrate with possession of dangerous drugs for the purpose of unlawful trafficking. After a trial he was convicted and sentenced to 2 ½ years' imprisonment. He appeals against conviction and sentence. In support of his appeal against conviction he still maintains that the drugs were not his and that they were planted on him by the police.

2. The evidence which the magistrate believed was that the Appellant was seen smoking a cigarette when they raided a hut and that when he was searched there was found in his pocket a polythene bag containing 1.7 grammes of a mixture containing 0.58 gramme of heroin. If, of course, the Appellant's evidence was true then the police evidence was not true, but the magistrate was satisfied that the police were telling the truth. However, the magistrate went on to say:

"The question of presumption did not arise and I found the Appellant guilty as charged".

I take that to mean - and counsel for the Crown agrees with me - that the learned magistrate did not think it necessary to rely on the presumption which in law did arise and that it was open to him to draw an inference that the Appellant had these drugs for the purpose of trafficking. With respect I do not think that the evidence did justify that inference. There must come a time when the quantity of drugs found in a defendant's possession is such that the only purpose he can have them for must be trafficking, but here the quantity was in view nothing approaching that amount. Perhaps because of the nature of the defence the learned magistrate did not warn the Appellant of the existence of the presumption. It would have been difficult for the Appellant to swear that the drugs were planted on him and at the same time to say that, if he was in possession unlawfully, he had them for his own consumption. Nevertheless the Appellant was not warned of the possibility that the presumption would result in his conviction and had he been warned he might have put his case differently.

3. I am satisfied that this conviction cannot stand as things are. It is not open to me to say that the learned magistrate would inevitably have held that the Appellant had not rebutted the presumption which in fact arose. Counsel for the Crown invites me to send the case back to the learned magistrate with a direction that the presumption should now be considered. I am not persuaded that this would be a proper course to take. In all the circumstances I think the proper course is to allow the appeal against conviction and to substitute a conviction for unlawful possession of dangerous drugs simpliciter.

4. The Appellant has two previous convictions for unlawful possession of dangerous drugs and the sentence which I will impose is one nine months' imprisonment.

13th May 1976.

Representation: