So Fat Cheung and Another v. The Queen
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CACC000584/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 584 OF 1973 -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 18th March 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellants were indicted on two counts, the first of manufacturing a dangerous drug and the second of possession of dangerous drugs for the purpose of unlawful trafficking. On the first count the second Appellant was acquitted: the first Appellant was convicted but does not appeal on this count. On the second count both were convicted not of possession for the purpose of unlawful trafficking but of simple possession. They appeal against these convictions. 2. The facts are that at five o'clock in the morning the police carried out a raid on premises at hut No.4 Po Tong Ha Village, Yuen Long. They arrived at the premises, called for the inmates to open the premises and, when they received no reply, they broke in. Inside they found three Chinese men. One was escaping through the back door and he was not caught. They found the second Appellant in the sitting-room. He was in the process of running towards the back of the premises. The first Appellant was found in a cockloft. The first Appellant produced from the pocket of a jacket, which was hanging up in the premises, a notebook and a number of keys. The notebook contained a fully detailed recipe for manufacturing dangerous drugs. Two of the keys were keys to the premises: one opened the wire gate in the fence outside and one opened the padlock of a cubicle in which a large quantity of dangerous drugs was found. There were other articles, drugs and paraphernalia for manufacturing drugs, in other parts of the premises. Each of these Appellants was cautioned and they made statements. The first Appellant made a statement which was in the event rejected by the learned judge as not having been established to be voluntary. Thereafter he made answers to the formal charge in the police station. The first one was:
As to the second charge, the one of possession for the purpose of unlawful trafficking, he said:
The second Appellant also made a statement to the police in the hut. He said:
He gave answers to the formal charges which were equally exculpatory. 3. The first Appellant admits that he is the owner of this hut. He says that in 1972 he went to work in Kowloon and that the man who escaped, one LAM Hung, was looking after the premises for him. The case for the Appellants, in substance, was that these were LAM Hung's drugs, he was in charge of the premises and they had nothing to do with it. The first Appellant said that from time to time he made visits to the premises. He had made a visit some time in the summer after a typhoon and he had come on this occasion, and summoned his nephew, the second Appellant, to assist him, so that they could paint the inside of the hut. The second Appellant confirmed that he had received a message from his uncle the night before to the effect that he was wanted to come and assist with some painting: he had then taken dinner, played a game of mahjong and had come out to the premises, arriving at one o'clock in the morning. He had then done some painting and had intended to return to his place of work in a market at 5.15 but was prevented by the unexpected arrival of the police. 4. The police found what appeared to them to be traces of heroin on the interior walls of the hut. They, therefore, took nail clippings and hand-washings from each of the Appellants and in each case drugs were found - both in the washings and in the clippings. There was expert evidence from the Government Chemist about the analysis of the various clippings and there was some discussion as to how the drugs could have got into the clippings. It seems to be his evidence that there would only be drugs on the clippings if the Appellants had scraped the drugs up with their nails. 5. I will deal with the appeal of the second Appellant first, that being the order in which we asked that the matter be argued before us. There are in substance two points which have been taken on his behalf. First it is said that the learned judge did not adequately direct the jury as to the law of possession. The point which was taken by counsel was that there was no direction as to joint possession. In our view that is not a fatal flaw in the summing-up. Indeed, if anything, it is favourable to the second Appellant. There was no doubt that the jury found both men in possession of these drugs and they must have been satisfied that there was joint possession. If one had been acquitted the Crown might have had cause to complain that there was a possibility that the jury thought that only one of them could be in possession. At the same time we think that the learned judge's direction was defective in that he made no direct reference to the mental element in possession. "Possession" in the Dangerous Drugs Ordinance means custody or control of drugs with knowledge that they are in the custody or control of the prisoner. However, in our view, the evidence in the present case was such that upon a proper direction the jury could not possibly have had any doubt but that the second Appellant had knowledge of the drugs in the case - and the same also applies to the first Appellant, although this point was not taken by him and he has not appealed in respect of the possession charge: we think it is quite clear in the case of the first Appellant that the jury must inevitably have found that he had knowledge because in his case there was his admission in the statement in answer to the charge of possession for the purpose of unlawful trafficking. We mention this because he was not professionally represented on the appeal. 6. The real difficulty so far as the second Appellant is concerned is whether or not there was evidence which justified the jury in returning the verdict which they did, and, indeed, it is argued that there was no evidence which could properly be left to the jury to find unlawful possession. We have considered this matter with some care because at one stage some of us did have doubts whether the evidence was sufficient. However, we are now satisfied that there was sufficient evidence to leave to the jury and we are of opinion that there is no ground upon which we can interfere with their conclusion. There is no doubt that these premises were a factory for the making of heroin. There was the evidence that this Appellant had dangerous drugs on his finger nails. We have the evidence that he ran away when the police came. Now those three things together might, or might not, have been sufficient to justify the finding which the jury made. But when those three elements are put together with the fact that this man told a story so improbable - that he had come out to the New Territories at one o'clock in the morning and had spent four hours painting and was just about to leave as the police arrived - we think that there was sufficient evidence to justify the jury in coming to the conclusion that this was a completely false story and to enable them to come to the opposite conclusion that he was in possession of the drugs. 7. It is surprising that the jury returned a verdict of simple possession and not one of possession for the purpose of unlawful trafficking. We think a probable explanation is that they did not fully appreciate the direction which had been given to them as to the meaning of the word "trafficking" but it is not necessary for us to say any more about that. 8. For these reasons we think that the matter was properly left to the jury and that the jury had evidence upon which they could convict and the application for leave to appeal by the second Appellant must be dismissed. 9. The first part of the first Appellant's address consisted in a submission that the evidence against him was not credible and that the jury ought not to have believed it. In our view there was ample evidence of a nature which the jury were almost bound to believe. They did believe it and we cannot interfere. 10. There is, however, one point which he raised which is of some interest, and that is that the first statement which he made to the police in the premises under caution was rejected as being not voluntary or rather as not having been proved to be voluntary. Nevertheless, the learned judge admitted the answers to the charge. He did not expressly refer to the connection between the two. Where one statement is rejected then a subsequent statement is inevitably, to some extent, open to question if not to suspicion. Where there has been a rejection of a statement it is because the Crown had failed to prove that the statement was voluntary. In other words they have failed to negative the possibility of some inducement. That being so there is a difficulty that any inducement which might affect the first statement might also affect the second statement. It will not necessarily do so but it is necessary for the judge at least to consider whether any possible inducement could be still effective. One has to consider all the circumstances of the case to ascertain whether or not any possible inducement or any proved inducement has been dissipated before the subsequent statement has been given. In the present case the matter is of no significance because even without the statements, the answers to the charges, we are satisfied that the evidence against the first Appellant was so overwhelming that no other possible verdicts could have been returned. 11. That being so, the application of the first Appellant must also be dismissed. 18th March 1974. Representation: |