The Queen v. Au Kwok Chai

CACC000435/1988

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Coram: Hon. Silke, V.-P., Kempster & Macdougall, JJ.A.

Date of hearing: 11 April 1989

Date of judgment: 11 April 1989

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J U D G M E N T

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Kempster, J.A. :

1. On 8 September 1988 at Hong Kong District Court, following his own plea, Au Kwok Chai was convicted by Judge Cameron of Possessing apparatus fit and intended for the injection of a dangerous drug and sentenced to a term of imprisonment. This court is not, concerned with that conviction or with the ensuing sentence. However, on the, same occasion and following trial Au was also convicted of possessing dangerous drugs for the purposes of unlawful trafficking and sentenced to 6 year s imprisonment. Against that conviction and, by his earlier notice, against the consequential sentence imposed in the alternative, he seeks or sought leave to appeal.

2. Also jointly charged and, after trial, convicted of the same two offences and given like sentences to Au was Miss Shek Wai Chun. According to the Crown evidence and to the judge's findings of fact she opened the door of a flat in Lok Shan Road, Tokwawan, on the morning of 10 April 1988 at the instance of a party of police officers who thereupon entered and searched the cubicle which she claimed to occupy. They found and seized what arrested to be two bank pass books, an entry permit, a registration for employment card and three rent receipts, all in the name of the applicant. The entry permit bore his photograph and the employment card his identity card number. The rent receipts appeared to relate to the occupancy of the flat but not specifically of the cubicle one of them also to the time at which the offences were admitted or alleged. The officers further found and seized 449.62 grammes of a mixture containing 29.41 grammes of heroin, the subject matter of the conviction for possessing dangerous drops for the purpose of unlawful trafficking, and the syringes, needles and a spoon which were the subject matter of the applicant's plea and conviction for possessing apparatus for the injection of dangerous drugs. A man's suit was found there as well.

3. It was submitted below and has been submitted to us on behalf of the applicant, arrested on 29 April 1988, that there was no case for him to answer.Judge Cameron ruled to the contrary. As he gave no reasons for hat ruling, and he was certainly under no obligation so to do, his approach must be a matter of inference. For my part I fine his description off the documents already mentioned quite illuminating. He used these words :

"They are produced as exhibits found at the scene. Weight will be considered later"

4. Then one may legitimately inquire what other evidence was available in relation to the charge of possessing dangerous drugs laid against the applicant. Most material, in my view, was the fact of his admission to having been in possession at that place and time of the apparatus for the infection of dangerous drugs. He could only have been in possession of the articles in question if, by reference to the classic definition of possession, be was in a position to exercise physical control over and to exclude others from them within the confines of this particular small cubicle forming part of the larger flat. The judge was entitled to rely and must strongly have relied or this unqualified admission inferring, the existence of like powers in relation to the other contents of the cuticle including the dangerous drugs. In asking himself whether there was a case of possession of dangerous drugs to answer he was also able to look at the documents, apparently associating the applicant with the cubicle, which were found there. It was unnecessary to rely on the truth of what was stated in any of them and I have no reason to think that he did so.

5. In these circumstances I am satisfied that the judge was entitled to find, at the stage when the submission was made, that the applicant had a case to answer on the charge of possessing dangerous drops for the purposes of unlawful trafficking.

6. Once it is accepted that the judge was entitled to make that ruling there is no question as to the propriety or safety of the conviction. Miss Shek Wai Chun went into the witness box and stated that the applicant, with whom she was cohabiting in the cuticle, was the tenant of the flat, gave her money for food and owned the dangerous drugs, which she had seen hip packaging, as well as the apparatus.

7. I would dismiss this application for leave to appeal against conviction as unassailable. In relation to the alternative application for leave to appeal against sentence the applicant himself has indicated that he wishes to withdraw it. I would again dismiss that application accordingly.

Silke, V.-P. :

8. I agree and I also would make the order my Lord proposes.

Macdougall, J.A. :

9. I also agree with what my Lord has said.

Representation:

K B Ng (DLA) for Applicant

I G Cross & Catherine Fung, for Crown/Respondent