Lui Chee-ping and Another v. The Queen
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CACC000570/1979 Criminal Law - District Court - Reasons for Verdict - possession of dangerous drugs for purpose of unlawful trafficking - presumptions under ss. 46, 47(1) and 47(3) of Dangerous Drugs Ordinance - no express finding that presumption under s. 47(3) not rebutted - such a finding implicit.
----------------- Coram: Huggins, J.A., McMullin, J.A. and Yang, J. Date of Judgment: 14 February 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. Nothing which the 1st Appellant has said to us persuades us that he was wrongly convicted, but, if correct, the argument of Mr. Wong on behalf of the 2nd Appellant would enure to his benefit. 2. The only point to which we think it is necessary to refer in this judgment concerns the omission from the trial judge's reasons for verdict of any express finding that the presumption under s.47(3) of the Dangerous Drugs Ordinance had not been rebutted. 3. The facts as found by the judge, so far as they are material, were that the police raided a flat, that the two Appellants were amongst the persons found therein, that a bunch of keys was on top of a cabinet in the flat, that one of those keys fitted a locked drawer in the cabinet, that 53.8 grammes of dangerous drugs were discovered in that drawer together with a bank passbook and two photostat copies of an identity card all in the name of the 1st Appellant, that the 1st Appellant said the keys were his, that another 1.9 grammes of dangerous drugs were discovered in a packet in the pocket of a jacket hanging on the wall, that the jacket matched the trousers and waistcoat which the 1st Appellant was wearing, that the 1st Appellant said the jacket was his, that no other keys were found on the 1st Appellant, that in the 2nd Appellant's handbag was found another bunch of keys, that the 2nd Appellant said the keys "were for opening a drawer in a room in the premises", that one of these keys fitted the lock of the drawer in which the dangerous drugs still were and that three of the other keys opened the iron gates and the door of the flat. On these facts the learned judge held that the presumption of possession arose under s.47(1), that the presumption of knowledge arose under s.47(3) and that the presumption that the possession was for the purpose of trafficking arose under s.46. 4. Mr. Wong does not dispute the necessity for the 2nd Appellant to rebut the presumptions. Her story was that she had been lent the keys that evening by the 1st Defendant, that she had arrived at the flat only some 15 minutes before the raid and that she did not know whether any of the keys would open the drawer. This story was disbelieved and the judge said that he was not satisfied the 2nd Appellant had rebutted the presumptions under s.47(1) and s.46. 5. It is now necessary to look more closely at the three subsections which created the presumptions. Although not taking first place in the statute s.47(1) is the obvious starting point:
Since possession in law normally involves knowledge of the thing possessed, that provision would appear to say that upon proof of possession of a receptacle in fact containing dangerous drugs the defendant is presumed, until the contrary is proved, to know that the dangerous drugs are inside. However, one can intend to possess something without knowing its true nature. The criminal law does not, as a rule, impose liability unless the defendant is aware that what he is doing is wrong, so it is not enough that he should be in possession of something which is in fact a dangerous drug: he must also know that it is a dangerous drug. So s.47(3) reads:
This completes the offence by providing evidence of the final mental element. 6. To establish the more serious offence of possession for the purpose of unlawful trafficking the Legislature has enacted s.46:
It is upon this that Mr. Wong has founded his argument, for he submits that the Legislature must have intended that the intent to traffic would be presumed only where the defendant proved or presumed to be in possession of something which he knows to be dangerous drugs; it would be manifestly unjust to convict someone of possession of dangerous drugs for the purpose of unlawful trafficking where he was proved or presumed to be in possession of a salt which was in fact salts of esters of morphine but which he honestly and reasonably to be common salt. Therefore, the argument goes, the presumption under s.46 would arise against the Appellants only if they failed to rebut both the presumption under s.47(1) and the presumption under s.47(3), and, since the judge did not expressly find that the latter presumption had not been rebutted, he was wrong to convict. 7. Miss Beeson for the Crown contends that there is an implicit finding that the presumption under s.47(3) had not been rebutted. She bases this contention upon the fact that the judge expressly found that the presumption under s.46 had not been rebutted and the truism that the Appellants could not be in possession of what were in fact dangerous drugs for the purpose of unlawful trafficking therein unless they knew that what they had was a dangerous drug. We think that is right and that the judge must have concluded that the presumption under s.47(3) had not been rebutted. Attractive as Mr. Wong made his argument, it cannot prevail. The case does, however, indicate the possible danger, where the charge is one of unlawful possession otherwise than for the purpose of trafficking, of not making it clear that each presumption has been considered in turn. 8. The applications for leave to appeal against convictions are dismissed. 14th February 1980. |