The Queen v. Kwok Lung

IN THE COURT OF APPEAL

1987 No.54
(Criminal)

BETWEEN

THE QUEEN

and

KWOK LUNG

Coram: Roberts,C.J., O'Connor & Booper, JJ.

Date: 6th May, 1967

________________

JUDGMENT

________________

Roberts, C.J. -

1. This is an application by KWOK Lung for leave to appeal against his conviction for possession of dangerous drugs for the purpose of unlawful trafficking, and against his sentence of 3^1/2 years' imprisonment, which was to run consecutively to another sentence which he is already serving for a similar offence.

2. The applicant (“D.2”) was the second of two defendants who were jointly charged with trafficking in dangerous drugs, on a boat moored in Aldrich Bay on the morning of 16th September, last year.

3. A police party had kept the boat under observation from approximately 7.30 in the morning of 16th September, using binoculars to watch it from a position ion on a roof-top in Shaukiwan at a distance of about 1,000 feet from the boat. This surveillance was maintained from 7.30 a.m. to 1.30 p.m., six hours’ later, when a party of police officers boarded the boat.

4. D.2, who was wearing white underpants, was first observed at 7.42 a.m. on the deck and was not seen to leave the boat at any time during that period. D.l, however, was seen to go ashore from the boat in a sampan for a little short of half an hour, at about 6 o'clock, and to return carrying a plastic bag.

5. During the morning, four different men were seen to approach the boat and on the first occasion something was given to the man by D.l. On the second occasion the man took something from the cabin of the boat and appeared to put $10 notes into the cabin. The third man boarded the boat and left after about 1/2 an hour. The fourth man, like the second man, approached the boat on a sampan but did not board. He took some banknotes from a wallet, threw the banknotes into the boat and took something from the cabin.

6. When the police party boarded the boat at 1.30 p.m., both defendants were found inside the cabin, a sketch plan of which was adduced in evidence. On the plan of the cabin, which measured 13' x 10', were marked the positions of the defendants and the drugs as seen by the police officers who boarded the boat.

7. D.l was sitting on the floor right next to a bucket, which contained a mosquito coil box. In the mosquito coil box were six polythene bags of what, on chemical examination, proved to be dangerous drugs. Also in the bucket was a jar containing 49 small packets of dangerous drugs. On a shelf, on one side of the cabin, was another jar containing 17 packets of drugs. On a wooden plank above the bucket were found four $10 notes and a red packet containing $748.

8. It is not without significance that there was also, alongside the bucket, a small polythene bag of dangerous drugs, which was open. Both the jar on the shelf and that in the bucket were transparent and could be seen to contain small packets of what looked like dangerous drugs.

9. D.2 was also present in the cabin sitting, according to the plan, about half way between the entrance to the cabin and the place where D.l was sitting with the drugs. Thus, D.2 must, at that point, have been within three to four feet from the drugs, which were in his full view.

10. The Judge expressed himself to be not satisfied that the evidence was sufficent to prove that the defendants were trafficking in the drugs that morning and, therefore, acquitted them on that charge. In this respect they may well count themselves as fortunate as the evidence of the presence of the drugs and the money in the cabin and. the frequent visits by others to the boat amounted, in our view, to a powerful case of trafficking.

11. However, the Judge found that both the defendants were in possession of the drugs and that they had failed to rebut the presumptions which thereby arose against them that they were in possession of the drugs for the purpose of trafficking.

12. The only question of substance which we have to consider is whether there was evidence upon which it was proper for the Judge to find that D.2 was in possession of the drugs. There can be no question but that D.l was in possession. Indeed, in his own evidence, he admitted that he knew of the presence of the drugs on the boat, though his explanation was that they were owned by KWOK Leung, the owner of the boat, and that he (D.l) only knew of their presence because he visited the boat from time to time to smoke drugs there himself.

13. In order that D.2 could properly be convicted, there must be evidence on which the Judge could find him also to have been in possession of the drugs during the morning in question.

14. In approaching this question we must, in view of the Judge's finding that he was not satisfied as to the trafficking charge, discount the transactions which the police saw taking place during the morning of 16th September. What therefore is the evidence and the necesary inferences from it, on wh:i.ch the Judge could properly rely, in approaching the question of the possession of D.2, it being well established that their presence in a place where drugs are discoverd is not, by itself, sufficient to prove possession?

15. On the evidence of the police officers, which the Judge accepted as being true, D.2 had been on the boat for six hours at least when the police boarded it, most of the time in the cabin. He was sitting within three to four feet from drugs, which were on open display. His story was that he was a casual visitor. This accords neither with his presence on the boat for so long nor with the fact that for at least half an hour he was left in sole charge of it by D.l. The Judge was also entitled to give some weight to the evidence of D.l that D.2 knew of the presence of the drugs on the boat.

16. If the evidence of the police officers is accepted; as it was by the Judge, D.2 was lying as to the period of his presence on the boat. His evidence was that he only boarded it at mid-day. The police evidence is that he was there from 7.30 a.m. onwards.

17. The Judge does not, in terms, consider the weight which he should attach to the telling of this lie by D.2. It is, nevertheless, well established that the telling of a lie) deliberately false and concerned with a material issue, may be given weight, if told with the object of avoiding a conviction? as indicating a guilty mind.

18. Against that background) we are satisfied that there was sufficient evidence on which the Judge could properly find that D.2 was in possession of these drugs during the morning of 16th September and that the conviction was not unsafe or unsatisfactory.

19. So far as the sentence imposed is concerned, the amount of drugs involved was 80 grammes of a mixture containing 9.40 grammes of heroin and a sentence of 3} years is well within the recognized guidelines for this quantity of dangerous drugs. Consequently, the applications for leave to appeal against both conviction and sentence are refused.

Appellant KWOK Lung - in person.

Mr. I.G. Cross, Ag. Sen. Asst. Crown Prosecutor, for Respondent/Crown Prosecutor.