The Queen v. Chau Tak Yee and Another

CACC000011/1989

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Coram: Silke, V.-P., Penlington & Macdougall, JJ.A.

Date of Hearing: 23 May 1989

Date of Judgment: 23 May 1989

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J U D G M E N T

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Silke, V.-P:

1. The Applicants, Chau Tak Yee who was D1 at trial and Lau Sze Man who was D3 at trial, were convicted by His Honour Judge Downey of possession of dangerous drugs for the purpose of unlawful trafficking and of possession of apparatus fit and intended for inhaling a dangerous drug.

2. There were five defendants originally charged. The 2nd defendant was convicted but she does not concern us now, having made no application, the 4th defendant had no evidence offered against him and the 5th defendant pleaded guilty.

3. The first charge concerned a quantity of dangerous drugs: 77.17 grammes of a mixture containing 5.40 grammes of salts of esters of morphine. The apparatus was paper tubes and tinfoils fit and intended for inhaling.

4. At about 5:30 a.m. on 20th September 1988 a police party raided a room at 646 in Block 18 of Wang Tau Hom Estate in Kowloon. They looked, before entering, through a gap in the outer door and they saw persons apparently inhaling dangerous drugs in a smoke filled room. Entry to the room was forced and four men and two women were seen squatting or sitting around a sheet of newspaper which was on the floor. On the paper were opened packets of dangerous drugs, cigarettes with dangerous drugs on them, Po Chai pills phials, paper tubes, pieces of tinfoil and two ten-dollar bank notes.

5. The flat was searched. A further twelve packets of drugs was found in a pillow case in a dog kennel. There was also found a bundle of polythene bags. On the exhibits seized from the newspaper were found traces of dangerous drugs.

6. Various bunches of keys were found distributed in the premises. They had been provided by D1. Those belonging to him and the 2nd defendant who was his girlfriend, were on the combination cupboard near some telephone bilis; those belonging to the 3rd defendant, were on a chest of drawers next to a sofa and to the sheet of newspaper which was on the floor. Ownership of these keys was not disputed. They opened the main door and some of them, though not ones which were those of D3, opened the padlock which on an iron grill.

7. The trial judge found that the various presumptions under the Dangerous Drugs Ordinance arose. D1 gave evidence to the effect that, having, cleaned himself up after work on the previous evening, he left the flat leaving D2, his girlfriend, sleeping there. She later left the flat about 9:00 p.m., meeting D5 entering as she left. In the course of the evening, it was the evidence of D1 and D3, that they had gone for a joy ride and engaged in various other activities returning to the flat at about 5:00 a.m. When they returned there D5 and D2 were found inhaling drugs. D2 said she had had a desire to experiment in drugs never having taken them before. D1 remonstrated because he was annoyed with both D5 and his girlfriend and threatened to make a report to the police. He was dissuaded from taking that course by D5. The police raid took place almost immediately thereafter.

8. Both D1 and D3 said they were not squatting, they were standing at the time when the police arrived and both denied any knowledge of the drugs which were found in the pillow case. They were both dressed at the time of the police raid in shorts without any upper garment.

9. The seeing and hearing judge did not believe the evidence of innocent association and lack of knowledge as raised by D1 and D3. He found the presumptions not to have been rebutted.

10. It is the contention of Mr. Howard, who appears in this Court with Miss Moosdeen for D1, that the trial judge failed to consider the case against each of the Applicants separately and failed to distinguish the evidence against them on each count separately. He failed to consider the knowledge and the mens rea of the Applicants on each of the counts and that he misdirected himself as to the inference to be drawn in relation to the keys which were found. Further, that he misdirected himself in speculating as to the pile of polythene bags which were found and by doing so he was adversely influenced in his assessment of the evidence of D1 and D3. And further again, that he led himself into misdirection by concluding that the premises were a sort of storage or packaging centre for dealing in dangerous drug.

11. It is true that the trial judge did not spell out explicitly in the Reasons for Verdict that he had reminded himself of the necessity for separate consideration in respect of the Applicants and the charges against them. But he did quite clearly deal with each of the Applicants and their defences in the course of his comprehensive Reasons for Verdicts. It has not been shown to our persuasion that he failed to have in mind the necessity for such separate considerations.

12. The keys that were found certainly entitled the trial judge to draw the inferences he did in relation to them. He remarked, of the 3rd defendant that he had not explained how, if he were standing between the front door and the centre of the room, his keys were on a chest of drawers in another place. This was in relation to D3's evidence that he went to the premises very rarely and that he and D1 had only just entered immediately prior to the raid by the police.

13. The inferences in relation to the keys which, of course, related in terms to the presumptions, were ones the trial judge was properly entitled to draw.

14. It was accepted very frankly at trial that this was a "heroin inhaling" party as a generality. There were polythene bags with drugs found on the newspaper.  It has become by now a notorious fact that polythene bags are used for the packaging of drugs. The trial judge was therefore entitled to consider the packets of empty polythene bags which he found in the context of the evidence overall.

15. When this application opened this morning, D3, Lau Sze Man, informed the Court of his intention to abandon his application in respect of conviction. As D1, Chau Tak Yee, was represented, we did not accede to that application until we had heard that which would be said on behalf of D1 in case there was anything might enure to the benefit of D3.

16. In addition to his application in respect of conviction D1 also sought leave to appeal against sentence should that have been necessary but that application was abandoned also at the opening of the appeal.

17. Mr. Howard had said everything he could have said on behalf of D1. He has drawn our attention to portions of the record which he suggests support the grounds which he has advanced. We are not persuaded that the evidence before the trial judge did not justify the conclusions to which he came. He was entitled to draw the inferences he did and come to his conclusions of guilt.

18. In those circumstances, D3 is given leave to abandon his application against conviction, the application in respect of D1 on conviction is refused.

Representation:

William Howard, Esq., Q.C. & Miss Moosdeen (Kwan & Kwan) for D1

D3 in person

G.J. Lugar Mawson, Esq. for Crown/Respondent