Cheng Chun Fat v. The Queen

CACC000545/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 545 OF 1980.

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Coram: Bewley, J. in Court

Date of Judgment: 1st August, 1980

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JUDGMENT

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1. The appellant was convicted, together with another man of (1) possession of dangerous drugs for unlawful trafficking and (2) simple possession of dangerous drugs. The first charge involved seven packets of heroin weighing about 1.5 grammes. The second charge was in respect of a spoon and a piece of cotton wool containing a minute quantity of heroin. The appellant also appeals against sentences of twelve months and three months concurrent.

2. Both men were arrested when they were seen squatting on the sixth floor of a resettlement estate block by two officers hidden in a lavatory. The officers approached them and saw that between them on a piece of newspaper lay a spoon, a piece of cotton and a cigarette packet. One of the men was holding a syringe. When the police announced themselves the two men got up and ran in different directions. The appellant was caught as no tried to escape down the stairs. Both men were brought back to the place where they had been squatting. The cigarette packet was opened and was found to contain seven packets of heroin. There were two needles on the newspaper, as well as the spoon and piece of cotton.

3. Both defendants gave evidence and denied that they had been squatting as described, or that the exhibits belonged to either of them. The appellant called a witness who corroborated his evidence that he had been visiting a friend on that landing. The time given by the defence witnesses was however, one hour approximately earlier than the time of arrest sworn to by the police officers.

4. Mr. Cheng, for the appellant, now hands up an affirmation by the other defendant, Yeung Kim Man, who was ordered to be detained in a drug addiction treatment centre, to the effect that all the drugs belonged to him, that he did not know the appellant and that he had not been squatting with him at the time of his arrest. Mr. Cheng does not seek to call Yeung as a witness in this appeal, but submits that, in the light of this new evidence, I should order a re-trial at which Yeung would be called as a witness.

5. I see no merit in this application. The contents of the affirmation are totally at variance with the evidence given by both defendants in the Magistrate's Court. It is also at variance with the evidence of the police officers, whom the learned magistrate believed.

6. This was essentially a matter of credibility. The learned magistrate had the opportunity of seeing and listening to the police officers. They were not found wanting in cross-examination and he accepted their evidence. Likewise, he disbelieved the evidence of both defendants and the defence witness. This was entirely a matter for him and I see no reason to interfere with his conclusion. Both defendants were caught red-handed and were clearly in joint possession of the drugs and other exhibits.

7. The quantity of heroin was sufficient to attract the presumption in section 46 of the Dangerous Drugs Ordinance. As the learned magistrate points out in his reasons, no attempt was made to rebut it. He did not feel justified in holding that the facts led by the prosecution were in themselves sufficient to rebut the presumption on the balance of probabilities.

8. It is, of course, impossible for a defendant facing a charge of this nature to run a two-handed defence: that he was not in possession of the drugs, but that, if the court finds him to have been in possession, they were not for the purpose of trafficking. Counsel for the Crown submits that, where the defence does not lead evidence in an attempt to rebut the presumption, there is no need for the magistrate to direct his mind to the matter. I disagree. The learned magistrate was quite right in looking at the facts led by the prosecution, in order to see if the presumption had been rebutted.

9. I do not, however, agree with his conclusion. In my judgment these facts themselves point overwhelmingly to the conclusion that the drugs were to be consumed, either then or in the near future, by the appellant and Yeung Kim Man.

10. I therefore allow the appeal against conviction on the first charge. I quash the conviction for possession for the purpose of unlawful trafficking and substitute therefor a conviction for simple possession. The appeal against conviction on the second charge is dismissed.

11. The appellant is twenty-two and has a clear record. He has been found not to be an addict. In these circumstances I adjourn the case for a probation officer's report.

Representation:

Mr. Cheng Huan (David K.W. Tsang & Co.) for appellant.

Mr. Cross, C.C., for respondent.