R. v. Ho Pik-chu and Another

CACC000493/1991

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Coram: Hon Sir Derek Cons, V-P, Kempster, JA and Ryan J

Date of Hearing: 8 September 1992

Date of Judgment: 8 September 1992

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J U D G M E N T

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Kempster, JA:

1. This is the judgment of the Court.

2. On 11 October 1991, in the District Court, Madam Ho Pik-chu was convicted by His Honour Judge Burrell of the possession of dangerous drugs for the purpose of unlawful trafficking. On the same occasion Kwan Mun-ki was convicted of possessing dangerous drugs. Against those convictions Ho Pik-chu and Kwan Mun-ki seek leave to appeal.

3. Both applicants were charged with possessing dangerous drugs for the purpose of unlawful trafficking at No 6 Shung Ling Street, San Po Kong on 1 August 1990 - prior to the enactment of the Hong Kong Bill of Rights Ordinance. However, by the time of trial, that Ordinance had been enacted and certain procedural provisions of the Dangerous Drugs Ordinance consequentially repealed. For that reason no presumption was relied upon by the Crown.

4. The learned judge accepted the evidence of the police witnesses that on 1 August 1990 they stopped the first applicant in the street near No 6 Shung Ling Street and found upon her keys which fitted Flat C at that address. He also accepted their evidence that in this flat, together with clothing belonging to her, were 105 packets of a substance weighing in all 34.56 grammes shown, after analysis, to contain 30.76 grammes of heroin; traces of which appeared on a knife, phials and phial caps also found. When domestic kitchen scales, a sheet and squares of paper and rolls of cellophane were discovered, the first applicant candidly explained, as the judge found, that they were "for wrapping white powder" or "for measuring". We see that one of the police witnesses asked her "Whose was the white powder?" and that she answered "Mine."

5. There was expert evidence that the quantity of dangerous drugs found was sufficient for the consumption of an average registered addict over a period of 60-120 days. Like the packaging material that was cogent evidence that the dangerous drugs were possessed for the purpose charged.

6. As the judge observed in his undated Reasons for Verdict the first applicant had not been cautioned when she made the admissions just described. It is common ground that in accordance with the accepted code of police practice she should have been once the suspected dangerous drugs had been found and it is contended on her behalf that the judge therefore erred in taking such admissions into account.

7. As we understand the law the judge has the discretion to exclude any such admission if he finds, for example, that it is more prejudicial than probative, resulted from oppression or that for some other reason it was not made voluntarily. Judge Burrell found no such circumstances and nor do we. There are no grounds warranting interference with the exercise of his discretion to admit this evidence. The fact that it was somewhat tardily recorded in police notebooks, after discussion, did not preclude the acceptance of the testimony of the police witnesses who, without objection, had refreshed their memories by reference to them. R v Bass [1953] 1 QB 680; R v Mackintosh (1983) 76 Cr App R 177; R v Owen (1986) 83 Cr App R 100 at p 107 per Neil LJ. No remarkable feats of memory were involved and it is not a ground of appeal that the defence advocates acted incompetently.

8. In any event the first applicant, admittedly illiterate, repeated her admissions after caution in the Report Room of Wong Tai Sin Police Station at 7 pm on the same day. That cautioned statement the judge found to have been made voluntarily following "a trial within a trial" during which he saw and heard the witnesses concerned. Again no grounds have been demonstrated which would justify our interference with his conclusion.

9. Finally the judge was entitled to accept, as he did, the truth of the first applicant's contemporaneous admissions as opposed to her testimony at trial which was to the effect that the dangerous drugs, scales and packaging materials were not in the flat when she left it on 1 August 1990 and that she had made none of the uncautioned admissions described by the police witnesses; the cautioned admissions having been procured by misrepresentation. Likewise he was entitled to reject the evidence of the supporting witness whom he had seen and heard. He remarked that the applicant was a woman of previous good character and must have taken that factor into account in assessing her credibility.

10. In the light of his findings the submission that the judge did not consider whether or not the uncautioned admissions had ever been made cannot succeed. Overall the evidence against the first applicant was overwhelming and entitled the judge to hold that the charge against her was proved beyond all reasonable doubt.

11. The second applicant, who did not give evidence at trial, arrived at the flat towards the end of the search. It was accepted that he was the tenant and occupier and had keys. The principal tenant gave evidence that he had seen both applicants in the premises when he had called to collect rent. The second applicant must, in the circumstances, be deemed to have had control over the contents of the flat jointly with the first applicant. Further, the judge found that by reason of the distribution of phials and packaging materials throughout the premises he must specifically have been aware of the presence of the dangerous drugs so as to render him a joint possessor of them. R v Warner [1969] 2 AC 256. Accordingly there were no grounds upon which the second applicant's conviction for simple possession can properly be impugned.

12. Both applications for leave to appeal against conviction are dismissed.

13. In relation to sentence Ho Pik-chu has abandoned her application for leave to appeal and that application will stand dismissed accordingly. Kwan Mun-ki maintains his application.

14. On 25 October 1991 Kwan was sentenced to 12 months imprisonment as joint possessor of the dangerous drugs. The judge took reports from a probation officer and from an Addiction Treatment Centre Intake Officer into account. He also gave the second applicant credit for previous good character albeit in March 1973 he had been convicted of robbery and sent to a training centre. There was, however, no previous drug related conviction. It is submitted that his sentence was manifestly excessive and wrong in principle.

15. For a first offender in the relevant context during August 1990 nine months imprisonment was appropriate for simple possession of dangerous drugs. We see no good reason for the judge to have exceeded that term in the instant case. Accordingly this application succeeds. Today's hearing will be treated as that of the second applicant's appeal which we allow. The sentence of 12 months imprisonment will be quashed and one of nine months substituted.

Representation:

D.G. Saw, Sr Crown Counsel for the Crown/Respondent

J. Matthews (M/s Tang Wong & Cheung) for the Applicants