The Queen v. Chan Tze Ming
|
THE COURT OF APPEAL 1987 No. 333 BETWEEN : THE QUEEN and CHAN Tze-ming Before: Roberts, C.J. Barker, J.A. Kempster, J.A. Date of Hearing: 9th October, 1987 Date of Judgment: 20th October, 1987 ____________________ J U D G M E N T ____________________ Roberts, C.J. - Preliminary 1. CHAN Tze-ming (“Chan”) was convicted, after trial before Hopkinson, J. and a jury, of the offence of possession of a dangerous drug for the purpose of unlawful trafficking. The particulars of offence stated
2. Chan seeks leave to appeal against his conviction. Facts (Crown Case) 3. Two uniformed officers (P.W.1 and P.W.2) intercepted Chan, as he emerged from a lift on the 40th Floor of Causeway Centre. Chan was carrying a pink bag. 4. The officers asked him to let them enter the flat which he did, using keys in his possession to do so, still carrying the bag, which he deposited at the foot of a bed in one of the rooms in the flat. 5. Shortly afterwards, other police officers, from the narcotics squad, arrived and took possession of the pink bag and a second, white, bag which was next to it. 6. On examination, the pink bag was found to contain about 100 grammes and the white bag about 900 grammes of a heroin mixture. Also in the pink bag were scales, lighters and 480 small polythene bags. About $54,300 was found in a drawer in the room, as were rent receipts for the room showing Chan as the tenant of the room in which all these things were present. Defence 7. Chan, in his evidence, admitted that he was a tenant of the room, but alleged that he was not carrying anything when the police intercepted him and that he had never seen either of the two bags at the foot of the bed before the police officers noticed them. 8. He said he had not been in the flat for two days and suggested that they might have been left by one of two other men who sometimes slept there. 9. The flat had been rented in his name as a place where accounts could be worked out. Although he was the tenant, he never slept there. Grounds of appeal 10. The various grounds of appeal which were argued were all based on supposed misdirections by the Judge as to the presumptions which arise by virtue of section 47(1) of Cap. 134, which is in the following terms -
11. It was suggested that he did not tell the jury that a presumption under section 47(1) only arises if possession is established beyond reasonable doubt. This criticism overlooks passages in the summing-up in which the Judge tells the jury that "every ingredient of the offence” has to be proved, immediately after a paragraph in which he directs the jury that the standard of proof required is such as to satisfy them of guilt beyond reasonable doubt. 12. The main criticism, so far as the pink bag is concerned, is that the Judge should have directed the jury that only presumption (a) applied to the pink bag and not presumptions (c) and (d). 13. There are various passages in which the Judge refers, in relation to the pink bag, both to physical possession of that bag and to Chan's possession of keys and rent receipts as giving rise to the presumption of possession of the dangerous drugs found in the flat. 14. It does not seem to us, however, that this is of any significance. The charge, as laid, related to the drugs found in the two bags in the flat. Chan did not himself dispute his possession of rent receipts or keys, so that there can be no doubt that the presumption did arise in relation to those bags when found in the flat. And it is clear that the jury rejected the defence put forward by Chan. 15. Possession of the pink bag in the hallway may well have had some significance in the minds of the jury, if they accepted the police evidence that he was carrying it outside the flat, as making his evidence that he had never seen either bag before incredible. 16. We accept that the references to the possibility that such possession gave rise to a presumption under paragraph (a) were unnecessary, since it was possession of both bags inside the room that mattered. As it must have been on the latter basis that the jury convicted, these unnecessary references were merely otiose and not misleading to such a degree as to cause us any anxiety as to the outcome of the trial. 17. The case against Chan, if the-police officers were believed, was a strong one, which obliged him, by virtue of presumptions (c) and (d), to satisfy the jury, on the balance of probabilities, that the dangerous drugs were not in fact in his possession: He failed to do so, because the jury did not accept his evidence as discharging that burden. 18. We have no hesitation in dismissing the application for leave to appeal against conviction. G. Plowman (D.L.A.) for the Appellant. E.C. Harris, Senior Crown Counsel, for Respondent. |