Chan Kwok-mei v. The Queen

CACC000473/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 473 OF 1980.

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Coram: Hon. LIU, J. in Court.

Date of Judgment: 17 July 1980

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JUDGMENT

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1. The appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking therein contrary to section 7(1) of the Dangerous Drugs Ordinance.

2. The case against him before the learned magistrate was that on the 2nd of January this year at about 4.55 in the afternoon, the accused was observed acting in a surreptitious manner outside the Violet Peel Methadone Clinic. He was kept under surveillance by Constable Poon for some four minutes before he was approached by a female. The appellant was seen to have been handed over some money by the female in return for something given by the appellant. Contact was thereupon made between police officers, but unfortunately the female was unable to be located. The appellant was searched by a police officer and was allegedly found to have in his possession six packets containing dangerous drugs. On the person of the appellant was also found a sum of $4,310.00.

3. The appellant gave evidence. He denied the incident involving the woman as alleged by the police. As for the six packets of dangerous drugs, he charged that they were picked up by the police officer from a second-hand carpet nearby. The appellant was equally swift in offering an explanation for the sum of $4,310.00 in his possession. He claimed that half was retained, meaning presumably that half had always been his own fund, and the remaining half was money wun in a mahjong game. He did slightly qualify his evidence that $3,000.00 or $4,000.00 had been wun in mahjong. His versions were disbelieved by the learned magistrate.

4. Having rejected the appellant's evidence, the learned magistrate found on "circumstantial evidence" that the appellant was guilty as charged.

5. No less than four grounds of appeal were advanced, but in substance they can be divided into three main complaints. First, it was contended by counsel for the appellant that whilst the learned magistrate had warned the appellant in no uncertain language of matters pertinent to the statutory presumption, the appellant was not further reminded at the adjourned hearing some four days later. It was also strenuously urged by counsel that from the records of appeal, some misapprehension on the part of the learned magistrate could be detected in the sense that at the adjourned hearing, the learned magistrate seemed to have diverted his attention to trafficking from the charge of possession for trafficking under section 7(1). This court was invited to take cognizance of the likely confusion into which a lay person, the appellant, would fall when even a professionally qualified magistrate could, after a lapse of four days, unwittingly venture into another area under the Dangerous Drugs Ordinance. I find myself at variance with counsel's submission that the learned magistrate adopted a slight change of front on the 9th of May. No misconception on the part of the learned magistrate can fairly be deduced from any of the records of appeal.

6. The appellant was properly appraised of the statutory presumption with all its attendant repercussions. There were no unusual circumstances to warrant a further reminder on the same line to be administered to the appellant at the adjourned hearing. Both of these grounds, i.e. on the absence of a further reminder and the suggested deviation of the learned magistrate at the adjourned hearing, are not, in my view, substantiated.

7. Then, it was argued by counsel for the appellant that the proven circumstances could not support the conviction, particularly in view of very small quantity involved and the initial admission of the appellant to an offence of simple possession. Such matters, so ran counsel's able submission, should at least prune whatever insinuation off the circumstantial evidence which might otherwise have founded the conviction.

8. No legal principle was in issue. It was acknowledged that circumstantial evidence might be such as to impel the court to conclude that possession must have been for no other purpose than that of trafficking. I need hardly allude to the oft-quoted passage in the case of the R. v. Wong Yin Yu, 1972 HKLR 6 at pages 12 and 13. In my view, the learned magistrate found it unnecessary to invoke any statutory presumption. He rejected the evidence of the appellant and found him in possession of six packets of dangerous drugs, though in all of a fairly small quantity. With the accused's version rejected, possession of six packets of dangerous drugs and a large sum of money in the light of his prior activities as testified to by the police officers would entitle the learned magistrate to draw the irresistable inference that the six packets in his possession were not to be retained (in the words of Mr. Justice Huggins, as he then was, in the case I have referred to) as "a collector's items" and that the same were possessed by the appellant for the purpose of being disposed of to consumers. In fact, having accepted the evidence of the prosecution and rejected the versions given by the appellant, it would have been unrealistic for the learned magistrate not to have come to the conclusion as he did.

9. I can see no way in which the decision of the learned magistrate can be faulted. For all these reasons, I do not find it necessary to call upon counsel for the Crown. It remains for me to order that the appeal be dismissed and the conviction affirmed.

Representation: