The Queen v. Chan Chi Leung

CACC000564/1988

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Coram: Cons, Ag. C.J., Power, J.A., Hopkinson, J.

Date of hearing: 23 August 1989

Date of delivery of judgment: 23 August 1989

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J U D G M E N T

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Cons, Ag. C.J., delivered the judgment of the Court:

1. The Applicant in these proceedings, CHAN Chi Leung, was convicted by Judge Downey in the District Court of an offence of possession of dangerous drugs for the purpose of trafficking. He had already pleaded guilty to a second charge of possession of apparatus fit for injection of dangerous drugs, namely a syringe and a broken spoon.

2. The evidence against him was that he was arrested in a stop and search operation by the police who found upon his person ten empty plastic bags. Eventally he took the police to his home where he revealed the items which gave rise to the lesser charge. According to the two constables who went there ten packets of dangerous drugs contained in a plastic bag were found under a cushion on a sofa. According to the Defendant's evidence that bag, which then contained also the ten empty bags untruthfully said by the police to have been found on his person, was found behind the front door, i.e. in effect it had been planted there by the police.

3. There were certain inconsistencies in the evidence of the two police officers, principally in regard to the position of the rest of the party at the time the Defendant was arrested, as to the number of bail receipts which were found upon him, and who examined and questioned him about them, and as to a conversation between the Defendant and a Sergeant who had been called over. There were other matters too which the judge found in the police evidence to be "wholly unsatisfactory", which related principally to overhearing, or not, conversations between the Sergeant and the Defendant and cautions administered in the Defendant's home. There was also the factor that the Defendant's mother had four keys to the flat whereas the Defendnat only had two.

4. The judge appreciated these matters and he dealt with them, and some others, in a very detailed Reasons for Verdict. Nevertheless he was satisfied that the plastic bag with the drugs inside was not planted by the police; and so, relying upon the presumptions contained in sections 46 and 47 of the Dangerous Drugs Ordinance, he convicted the Defendant. Now through his counsel, Mr. Grounds, the Defendant applies for leave to appeal that conviction.

5. The first ground put forward on his behalf is that "In all the circumstances of this case the evidence of the police officers was not of a quality such that the learned judge should have concluded that the said drugs were in the apartment before the arrival of the police party". It is similarly suggested that we should have "a lurking doubt as to the correctness of the judge’s findings".

6. The quality of evidence is primarily, as has been said many times in this and other courts, a matter for the trial judge. It is he who sees and hears the witnesses, and is in the best position to decide what weight their evidence may bear. In the present instance the trial judge was concerned about the quality some of the prosecution evidence, but his concern was not sufficient to raise a reasonable doubt in his mind as to the material question, which was where the plastic bag with the drugs was found. As we mentioned earlier, lie gave a very detailed Reasons for Verdict, which clearly explain his thought processes. As far as they are concerned we find no fault in them. So far as the substance of the evidence is concerned, it is clearly sufficient to found the conviction.

7. Mr. Grounds has drawn our attention to various passages in the transcript and in the judge's Reasons for Verdict in an attempt to persuade us that we should have a lurking doubt that some injustice has been occasioned to the Defendant. It is sufficient to say in that respect that we are not so persuaded.

8. The second ground is that, in considering the presumption of trafficking under section 46 the approach of the judge was flawed in that he did not consider all the circumstances of the situation with respect to rebutting the presumption, that in effect he decided the question solely upon his disbelief of the Defendant's evidence.

9. With every respect we do not think that was so. The judge did not mention in so many words the four matters which Mr. Grounds now puts forward as being worthy of consideration. What he did say was this:

"Furthermore, the presumption of possession, as well as the presumption of trafficking, have not, in my view been rebutted by the defendant by establishing the contrary on the balance of probabilities. The quantity clearly exceeds that in section 46 to trigger the presumption of unlawful trafficking. I merely mention that it may be that he did not have the whole of that quantity for the purpose of trafficking, in view of the clear evidence that he is himself addicted to dangerous drugs by his plea to the 2nd charge although I have no more details as to the extent of his addiction, and how far any part of the dangerous drugs may have been intended for his own consumption."

10. It is clear from these words that he did have in mind the presence of the apparatus and the quantity of the mixture that was found although in the latter respect he came to a different conclusion from that which Mr. Grounds now urges upon us. He appears to have taken the view that apart from the presumption, the amount was just too much to be for the Defendant's own use.

11. The other matters put forward by Mr. Grounds, namely that it was in the Defendant's own home that the drugs were found and that there was an absence of what might be termed "distribution paraphernalia", although with personal use, do not in our view necessarily take the matter any further.

12. For these reasons the application for leave to appeal is refused.

Representation:

I.G. Cross &. Miss C: Fung Crown Prosecutor of the Respondent

Christopher Grounds D.L.A. for the Applicant