The Queen v. Tong Kim-ping

CACC000127/1984

BETWEEN

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Coram: Barnes, J., in Court.

Date: 23rd March, 1984.

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JUDGMENT

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1. The Appellant was charged with possession of dangerous drugs contrary to section 8(1)(a) of the Dangerous Drugs Ordinance. The particulars of the: :dangerous drugs specified two separate drugs: one a heroin mixture contained in a packet and the other cannabis contained in five cigarettes. When charged he admitted possession of the "cannabis cigarettes" but denied possession of the heroin.

2. At the trial certain facts were proved by way of formal admission pursuant to section 65C of the Criminal Procedure Ordinance. Among those facts were the following:-

(i)	that the "cannabis cigarettes" were contained in a cigarette packet carried by    the Appellant in his shirt pocket;
(ii)	that the packet containing the heroin was found on the front passenger seat of a motor vehicle;
(iii)	that the Appellant was driving the vehicle when it was intercepted by the police just prior to the search which uncovered the drugs;
(iv)	that there were four occupants of the car (including the Appellant) at the time it was intercepted; and
(v)	that after the search a police officer drove the car to a police station "using keys seized from [the Appellant].

3. In his Statement of Findings the learned magistrate said :

"[The Appellant] was at all material times in possession and control of the motor vehicle in which the heroin was found. He also had in his possession the key to that vehicle.

All the above facts were admitted by the defence and were consequently proved in accordance with S.65C Criminal Procedure Ordinance Cap. 221.

4. The Law:-

With regard to the heroin it was conceded by defence counsel that, in accordance with s.47(1)(a) and (b) of Cap.134, [the Appellant] was presumed to be in possession thereof, until the contrary was proved on the balance of probabilities."

There is no note in the Magistrate's Minute of Proceedings recording such a concession by defence counsel. The Magistrate appears to have assumed that the formal admission amounted to an admission of possession. The admitted facts, however, could only prove possession if they activated a presumptive provision of section 47 of the Dangerous Drugs Ordinance.

5. At the hearing of this appeal Crown Counsel no longer sought to rely on the section 47(1)(b) presumption after being persuaded that proof of possession of keys which operate the driving mechanism of a car does not necessarily involve proof of possession of keys giving access to the car's interior. So the sole question became whether, on the evidence, the learned Magistrate could have been satisfied beyond a reasonable doubt that the Appellant had control of the car within the meaning of section 47. In other words, in order to prove that A is in control, is it enough merely to prove that he was driving a vehicle occupied at the time by A, B, C & D ?

6. The following consideration of this question is taken from R. v. CHEUNG Yuk-san & Ors. ⁽¹⁾ :-

"It has been said that 'control' is a word of 'wide and ambiguous import': per Mr. Justice Dixon in Bank of New South Wales v Commonwealth.⁽²⁾ Nevertheless one must construe it in its context. [The section] is evidentiary, i.e. in given circumstances it supplies evidence of matters which would otherwise have to be proved strictly. What may thus be proved are some of the elements of possession. The control which must be proved in order to bring the presumption into play is a control which suggests a probability that the controller is in possession ...............................

A person who may appear to have a measure of control may not have such control as will attract the presumption. Such a case would be where a chauffeur was driving his employer's car with the employer in the car: he would be directly controlling the movements of the vehicle but the effective control of the car for the purposes of the section would be in the employer under whose direct orders he was driving ................................"

7. The Full Court then went on to approve the following statement in WU Him-fong v. Reg.⁽³⁾:

(1) (1969) H.K.L.R. 27, 30-31

(2) (1948) 76 C.L.R. 1, 385 .

(3) (1959) H.K.L.R.291, 297.

"A prima facie case (of unlawful possession) must, ordinarily, arise against an unaccompanied driver of a vehicle in which dangerous drugs are being carried."

8. The case under appeal was not the case of an unaccompanied driver. There was uncontradicted evidence before the learned Magistrate that the Appellant was not the owner of the vehicle but there was no evidence as to whether any of the three passengers was the owner. The officer who found the heroin said in evidence that it was found inside the seat cover on the front passenger seat. The evidence did not therefore, in my view establish beyond a reasonable doubt that the Appellant was in such effective control of the car as to "suggest a probability he was in possession" of the heroin. It fell short of attaining that standard.

9. In the circumstances the learned Magistrate should have found that the proper foundation for the application of the presumption under section 47(1)(a) had not been laid.

10. I therefore allow the appeal to the extent that the Magistrate's Minute of Conviction is varied by the deletion from it of all reference to the heroin.

11. Had the learned Magistrate dealt with the Appellant on conviction for possession of cannabis alone he would not have imposed the sentence he did. I allow the appeal against sentence, quash the sentence imposed and substitute for it such sentence of imprisonment as will permit his immediate release.

Representation:

Mr. Ricketts, Crown Counsel for the Crown.

Mrs. Penlington (Messrs. O'Cock & Day) for the Appellant.