Mak Chung v. The Queen

CACC000106/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 106 OF 1972

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Coram: Rigby, C.J. and Briggs & Huggins, JJ.

Date of Judgment: 13th May, 1972.

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JUDGMENT

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1. The appellant was convicted of the charge preferred against him of possession of a dangerous drug, namely, 4087 grammes of opium for the purpose of unlawful trafficking therein. He now applies for leave to appeal against his conviction.

2. The facts of the case may be briefly stated. At some time on the 7th December, two police constables and a female police constable, at Luen Wo Market in the New Territories, apprehended and arrested a Chinese female. It is said that that arrest was made as the result of an ambush laid by those police officers. It would appear that, thereafter, the Chinese female gave some information as a result of which, under her directions, the police party proceeded to a house in Main Street, San Hui. On entering the house the Chinese female pointed to a cubicle therein. The Chinese female was then escorted by the woman police constable back to the car in which they had come, and the two detective constables entered the cubicle which had been pointed out to them. On entering the cubicle the police found the appellant asleep on a bed therein. They awakened him and searched him. On searching the cubicle they saw what was described as "a Union Shirt plastic bag" on a chair in the corner of the cubicle. On examining the contents of the bag they found a package which, upon opening it, they found to contain a substance which they suspected to be raw opium. That suspicion was confirmed upon subsequent analysis; the substance being found to be 4087 grammes of opium. The appellant gave evidence at his trial denying all knowledge of the package and its contents. It was admitted that the bed upon which the appellant was sleeping at the time the police entered was itself enclosed by a curtain and that the door of the cubicle had no lock to it. It was closed but not locked when the police entered. Upon that evidence the learned convicted the appellant of the offence as charged.

3. Three grounds of appeal were taken by Mr. Robert Tang, who argued the case for the appellant with considerable ability and with obvious care and thoroughness.

4. The first two grounds may be taken together. Mr. Tang submitted that the evidence concerning the arrest of the Chinese female was irrelevant and accordingly inadmissible; alternatively, he submitted that even if it was relevant its prejudicial effect far exceeded its probative value and the learned trial judge, in his discretion, should accordingly have rejected it. Evidence was given by one of the police officers that the Chinese female was, in fact, arrested on a charge of possession of dangerous drugs. It was contended by Mr. Tang that the only issue in the case was whether or not the appellant was knowingly in possession of the dangerous drugs found in the room in which he was sleeping and the circumstances as to the arrest of the Chinese female on a charge of possession of dangerous drugs, and the fact that she may have directed the police to the premises in which the appellant was found, was not only irrelevant and therefore inadmissible but it was evidence the purport and intention of which could only have been to prejudice the appellant.

5. We find ourselves unable to agree with the first part of that submission, for this reason. This was a sudden arrest of the Chinese female. There was no reason to believe that either she or anybody connected with her - and still less anybody connected with the appellant - knew that she was going to be arrested. As the result of her arrest she directed the police to the room in which the appellant was sleeping and where the opium was found. There was no evidence to suggest, and no reason to believe, that she knew she was going to be arrested. There was nothing to indicate that, upon arrest, she was likely to direct the police to the room in which the appellant and the opium were found. In such circumstances there was, therefore, no opportunity for anyone with a possible grudge against the appellant, forewarned that the Chinese female was not only going to be arrested but was also going to lead the police to the room in which the appellant slept, to have deliberately and maliciously placed the parcel of opium in his room. As the learned trial judge put it, the fact that upon her arrest she directed the police to the room of the appellant could only mean that she was indicating that "something which was the concern of the police was, or might be, found in that room." He went on to say that "No one at the stone hut, or anyone else in San Hui could have had any information that police were on their way, so as to prompt them to put opium in the accused's room, and even if this had been so, the woman could not have known about it." The obvious defence which must become apparent where drugs are found in a room occupied by an individual is the defence that those drugs had been placed or planted in the room without the knowledge of the individual. The evidence as to the arrest of the Chinese female was relevant for the purpose of anticipating any such defence. For these reasons we think that this evidence was both relevant and admissible; nor are we prepared to say that the evidence given that she was in fact arrested on a charge of possession of dangerous drugs was of such a prejudicial nature that the learned trial judge ought, in his discretion, to have rejected it.

6. The third additional ground of appeal really depends upon our upholding the general ground that "there was no sufficient evidence whereon to found the said conviction." We have criticised before this form of pleading and once again remind practitioners that it is their duty to specify the particular finding or findings which are said to be unsupported by the evidence. In this case the only finding which has been challenged is the finding that the appellant knew that the drugs were in his room and that he was in possession of them. There was in truth no evidence whatever that the appellant knew the drugs were in his room: the fact that the learned judge disbelieved him when he said he did not know is not evidence that he did know, although the fact of telling lies may in some circumstances amount to corroboration. A fortiori there was no evidence to justify a finding of possession.

7. As there was no evidence to justify a finding of possession the only basis upon which the learned judge could properly convict the appellant was the statutory presumptions which may arise under sections 46 and 47 of the Dangerous Drugs Ordinance. The last point taken by Mr. Tang is that at no stage in his judgment or reasons for Verdict had the learned judge sought to rely upon, or made any reference to, those presumptions. Section 47 provides in part:

shall, until the contrary is proved, be presumed to have had such drug in his possession."

There was evidence given by the appellant himself that he, his wife and, occasionally, his adopted child occupied the single room in which he himself was found asleep. On that evidence and relying upon the statutory presumption contained in s.47 the learned trial judge could have found that the drugs were found in a place, to wit his cubicle, which the appellant had under his control and that he was accordingly presumed to have had such drugs in his possession until he proved the contrary, a proof which was not in fact established by the appellant. Mr. Tang seeks to find some support in the case of LUNG Siu-king v. Reg. Criminal Appeal No.672 of 1968 for his submission that if a judge or magistrate makes no reference in his judgment or grounds of decision to statutory presumptions he must be taken not to have relied upon those presumptions for the purpose of his decision. In that case Huggins, J. said:-

"There was some argument whether the learned magistrate relied upon the presumption laid down in s.16 of the Dangerous Drugs Ordinance. He made no mention of the section and as I said in YU Wai-ming v. Reg. (Criminal Appeal No. 169 of 1968) such omission must be taken to indicate that the learned magistrate did not rely upon the provisions of the section. That does not mean, of course, that if the necessary facts are found the presumption does not of necessity arise but merely that the magistrate has not thought it necessary to pray the presumption in aid and therefore has not considered whether or not the presumption has been rebutted."

This was based upon the propositions that a fact which is presumed is not "found" and that a magistrate (as is a District Judge) is required to state his "findings". If he "finds" that a defendant was in possession there is no necessity for him to rely upon any presumption of possession. On the other hand, if there is no evidence to justify a finding of possession but there is evidence of facts which would give rise to a presumption of possession, he is under an obligation to consider whether he believes that evidence and finds those facts - possibly facts which would not otherwise be material. If he does find those facts he should say so and since, ex hypothesi, he does not find possession as a proved fact it is necessary, in order that his line of reasoning may be complete, that he should state that he relies upon the presumption. However, Huggins, J. clearly appreciated that a presumption might arise where it was not relied upon by the judge or magistrate and that if it did arise an appellate court might act upon it. The difficulty usually is that where the presumption depends upon proof of facts which are not otherwise relevant there is unlikely to be a finding of those facts unless the judge or magistrate thought it might be necessary to rely upon the presumption. In the present case the presumption under s.47 was not relied upon by the trial judge and the question is whether, despite that, he found facts which, as a matter of law, gave rise to the presumption - or whether it is proper for us to make those findings. The learned judge did not expressly find that the appellant was in control of the premises where he and the drugs were found, although he found that the appellant lived there with his wife and, occasionally, his adopted child and that it was "his room". We do not think it necessary to decide whether he found by necessary implication that the appellant was in control of the premises because we are satisfied that in the absence of such a finding it would be proper for us to make one and that on the evidence no other reasonable conclusion is possible.

8. That, of course, is not the end of the matter because the presumption is rebuttable. One reason why a judge or magistrate must expressly indicate when he relied upon a presumption of this kind is that it must appear that he has applied his mind to the question whether the presumption has been rebutted. In the present case, the learned judge did not do so but, again, the circumstances are unusual in that it is abundantly clear that he disbelieved the appellant when he said that he had no knowledge of the parcel or its contents. In such circumstances it cannot conceivably be said that the appellant had made any attempt whatsoever to rebut the presumption of both possession of the parcel and knowledge of its contents, which presumption necessarily arose against him by reason of the fact that he was in control of the premises, to wit, the cubicle, in which both he and the parcel containing drugs were found. Once the appellant was presumed by virtue of s.47 to have the drugs in his possession, then, it being common ground that the quantity of the drugs found amounted to 4,087 grammes of opium, the presumption of possession for the purpose of trafficking arose under s.46. No attempt was made to rebut this further presumption.

9. For these reasons, we are satisfied that the third ground of appeal must also fail and that the application for leave to appeal must accordingly be dismissed.

Representation:

Robert Tang (Gunston & Chow) for Appellant.

Moshinsky, C.C. for Crown/Respondent.