Wong Chu and Another v. The Queen

CACC000497/1969

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 497 OF 1969

-----------------

-----------------

Coram: Briggs, J. in Court.

Date of Judgment: 16 August 1969

-----------------

JUDGMENT

-----------------

1. The two appellants together with a third person, who is not before the court, were charged with two counts: (1) being in possession of dangerous drugs contrary to section 8(1) (a) of the Dangerous Drugs Ordinance and 2) smoking a dangerous drug contrary to section 8(1) (b) of that Ordinance. The third person pleaded guilty to both charges. The first and second appellants pleaded not guilty.

2. The third person was sentenced to six months' imprisonment on each charge, the sentences to run concurrently. He has not appealed.

3. The record then states that the charge was amended. It does not mention the charge of possession at all, which presumably remained on the file together with the pleas of not guilty of the two appellants thereto. However the second charge, the charge of smoking, was amended. It was replaced by two separate charges of smoking a dangerous drug, one in respect of the first appellant and one in respect of the second appellant. It is fair to say that from this point the case was treated as one of smoking a dangerous drug. Not as a case of being in possession of a dangerous drug.

4. The Magistrate in his findings states: "I believe the evidence of the prosecution witness and am satisfied that the prosecution have proved their case, beyond reasonable doubt. I therefore find (the first and second appellants) guilty of the charge of smoking dangerous drugs". No mention is made of the charge of possession. Nor is that charge referred to in the "Statement of Findings" dated 17th June, 1969.

5. The facts are that the two appellants and the third person I have already mentioned, were found in a room in premises at 66, Fuk Lo Chuen Road, Kowloon, by a party of police attached to the Dangerous Drugs Squad of the Police H.Q. Kowloon. When found the third person was smoking. The following articles were found in the room:

6. The tinfoil and the match-box cover were in the hands of the third person; the packet was lying on a bed on which all three persons were sitting.

7. No Police witness suggested that either of the two appellants were smoking. The appellants themselves denied this: and the third person I have referred to was called as a witness and he said that all the drugs and paraphanalia were his.

8. The prosecutor relied on the provision of Section 48 of the Ordinance. The sidenote of which reads "Presumption concerning divans". Their case is that the three persons were found in premises which by reason of this section was a "divan". And that therefore by reason of subsection 2 of that section there is a presumption that the two appellants were smoking. This is true but it is a rebuttable presumption. And in my opinion the magistrate was wrong not find in the evidence that the presumption was rebutted in this case.

9. The Police witnesses clearly did not find the two appellants smoking. Their evidence was concerned with the possession of dangerous drugs and the smoking of dangerous drugs by the third person. There was no suggestion that the two appellants were smoking and the case for the Crown specifically rested upon the presumption. The appellants both gave evidence and in cross-examination it was never put to them that they were smoking. The point sought to be made was that they were present in the divan with the third person who was smoking. In view of the evidence of the prosecution witnesses and the evidence that the paraphanalia discovered in the so-called divan was almost certainly only sufficient for one smoker. And in view of the cross-examination of the two appellants together with the evidence called on their behalf there was, as I have already said, ample evidence to rebutt the presumption enshrined in Section 48 of the Ordinance.

10. The prosecution have only themselves to blame for this state of affairs for it may well be that they could have succeeded on the charge for possession.

11. Be that as it may I had no alternative but to quash the conviction of the two appellants, to set aside their sentences and to order that they be discharged.

12. There is another matter to which I would draw attention. During the trial on the 29th of April, 1969, the solicitors for the appellant made an application for bail for their clients. The Crown opposed this on the grounds that the appellants might possibly interfere "with witnesses". This was an odd remark to make in the circumstances because all the witnesses for the prosecution were police officers and the only witnesses called for the defence were the appellants themselves and the man to whom I have referred as 'the third person' who was serving a prison sentence. Perhaps the Prosecution Officer had some one else in mind. Be that as it may, in the record there then appear the words "Both defendants had many previous convictions".

13. I am not sure if this unfortunate statement was made to the Magistrate by the Prosecuting Officer. But I rather think that it was. It was very wrong to have directed the mind of the Magistrate to the record of the appellants during the hearing of the case and that alone might be grounds for quashing their convections.

14. In the circumstances holding as I do that the presumption contained in Section 48 of the Ordinance was rebutted, the convictions cannot stand. The conviction of the two appellants are quashed, the sentences set aside and they are discharged.

Representation: 

Appellants in person

Lucas C.C. for Respondent

Oral Judgment reduced into writing.