The Queen v. Pingal Raj Pant

CACC000529/1983 

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Barker & Fuad, JJ.A.

Date of Judgment: 16th September 1983

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. Mr. Payne, for the Appellant, was faced with some difficulty in that the single judge suggested that there were legal issues which should be considered by the full court but he did not specify what they were. Counsel originally had difficulty in finding any matters to argue and in the event he has relied wholly upon one ground of appeal which he has, at a somewhat late hour, been able to formulate: he has now noticed that there was a passage in the summing-up where the learned judge suggested that the jury might consider the fact that the Appellant had remained silent after he had been cautioned in relation to the present offence. In our view that was clearly wrong. The Appellant was entitled to say nothing and it was wrong to draw from his silence any inference prejudicial to the Appellant. However, we are of opinion that the evidence in this case was so strong that this error could not have had any substantial effect on the verdict of the jury.

3. The Appellant came into Hong Kong and presented at the Customs counter two suit cases. He said on more than one occasion that they were his. In those suit cases were found false bottoms containing the drugs alleged. His story eventually was that the cases were not his at all, that they were the property of his companion on the flight, a Mr. Tamang, who had in effect allowed him to put some of his clothes into one of Mr. Tamang's suit cases and that at the time he was arrested he was merely acting as a porter for Mr. Tamang. The fact remains that the burden of proof of this story was clearly on the Appellant. He undoubtedly had the custody, and was in control, of the suit cases: he had gone to a separate counter from that to which Mr. Tamang had gone and he had assumed the custody and control, even though he might not have done so had he remained throughout with Mr. Tamang. The story which he told was in itself an unlikely story and quite obviously the jury were totally unimpressed by it. In our view the proviso must be applied and this appeal must be dismissed.

16th September 1983