The Queen v. Koo Fu Hoi and Others

CACC000542/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Kempster, Power & Penlington, JJ.A.

Date of hearing: 23rd June 1988

Date of judgment: 23rd June 1988

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J U D G M E N T

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Kempster, J.A. :

1. On 23rd October 1987 Koo Fu Hoi, Tsang Chiu Yin and Yan Tak Ming were convicted after trial of possessing dangerous drugs for the purpose of unlawful trafficking. Against those convictions they seek leave to appeal.

2. It is to be observed that on the same occasion, on their own pleas, Koo Fu Hoi and Yan Tak Ming were convicted of Possessing apparatus fit and intended for the injection of a dangerous drug. All three applicants were cleaning workers employed at Wang Yuk House Wang Tau Hom. In the early hours of 24th August 1987 they were found squatting, in a store room on the premises virtually surrounded by dangerous drugs in packages and by the polythene bags and other equipment required to separate the dangerous drugs into saleable parcels. Beyond question the store room had been used for such unlawful purposes and the question which arose at trial was whether or not these three men were jointly in possession of the dangerous drugs with the necessary intent.

3. As regards Koo and Tsang presumptions of law arose because they were found in possession of keys to the premises. It was, in the circumstances, for them to satisfy the judge on the balance of probabilities that they were present in that store room for some innocent or other purpose and were, therefore, not in fact in possession of the dangerous drug or alternatively in possession of it for the purpose of trafficking. In relation to Koo and Tsang, despite their written grounds of appeal and that they have urged upon us this morning, it is apparent that the judge found, though he did not say so in the clearest terms, that they had failed to rebut the presumptions. He did not accept the reasons they gave for being present at the store. Accordingly he found that they were in possession of those drugs for the purpose of trafficking jointly, and convicted. Their applications for leave to appeal against conviction are dismissed accordingly.

4. The position of Yan Tak Ming is different. He was not in possession of keys so no presumption arose. The only evidence available to the judge upon which he could have found him also in joint possession of these drugs for the relevant purpose was his proximity, at an unsually early hour of the morning, to such drugs and to the packaging material. Certainly the judge would have been entitled to find, as he did, that Yan was aware that the dangerous drugs and the material for packaging were in the storm room But the further inference drawn that Yan was in a position to exercise control over those drugs and to exclude others from them, so as to satisfy the second element constituting possession, is much more questionable; particularly when he had found that Yan was present in that flat not only with apparatus fit for the purposes of injection but was actually engaged in injecting himself. That finding was supported by the discovery of two unwrapped syringes one of which contained traces of dangerous drugs. In those circumstances it seems to us that other inferences could equally well have been drawn from the evidence. For example Yan might have come to the store room to buy drugs which he then administered to himself by syringe. The inference that he was in joint possession was not the only one which the judge could reasonably draw from the facts which we have sought to outline. We therefore conclude that his conviction was not safe or satisfactory. In relation to Yan, we allow the application, treat this as the hearing of the appeal, quash the conviction for possessing dangerous drugs for the purposes of unlawful trafficking and set aside the sentence of 4 years. That leaves him with the sentence of 1 year for possessing the apparatus to serve.

Representation:

Koo Fu Hoi in person

Tsang Chiu Yin in person

Mr Simon Westbrook (C W Leung & Co) for Yan Tak Ming

A A Bruce for Crown/Respondent