The Queen v. Mok Kou Chai

CACC000059/1990

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

CRIMINAL APPEAL NO. 59 OF 1990

____________

BETWEEN

_____________

Coram: The Hon. C.J. Clough, J.A. & Barnes J.

Date of Hearing: 25 July 1990

Date of Delivery of Judgment:  25 July 1990

__________

JUDGMENT

__________

Barnes, J.:

1. The Appellant pleaded not guilty in the District Court before Her Honour Judge Chan to a charge that on 2nd July 1989 at room 1408, Block 14, Chai Wan Estate, he had in his possession such a quantity of dangerous drugs that unless the contrary were proved he was to be presumed under the law to have had them for the purpose of unlawful trafficking.

2. The undisputed evidence was that the drugs in question were found in a flat of which he was the tenant and in respect of which he had the keys giving access to the premises. The sole issue was, therefore, whether the presumption which arose from his tenancy of the flat and possession of the keys was rebutted.

3. The Applicant gave evidence relevant to that issue. In her reasons for verdict, the learned District Judge sets out at length the Applicant's version of how he was framed by an enemy who planted the drugs in his flat. She, however, came to the conclusion that there was no substance in this claim or, at least, she found herself unable to accept his evidence about that. And she accordingly rejected his rebuttal evidence and convicted him.

4. He now appeals against his conviction and his counsel, Mr. Wong who appears for him today has put forward three grounds of appeal with elaborate particulars. And for my own part, I would compliment Mr. Wong both on the grounds which he has formulated and the manner in which he has supported them by oral submissions before us today.

5. The first ground of appeal is that the learned Judge erred in forming the impression that the Appellant's whole account of being framed up by his enemy, a certain named person, was fabricated.

6. In support of that ground, Mr. Wong has supplied four particulars. Without repeating them, I think I do not do him an injustice by saying that even if the judge had believed the testimony given in respect of those particulars, it is unlikely that she would have come to a different conclusion.

7. The second part of this ground alleges that she failed to give any or any sufficient consideration to the reactions of the Appellant which were consistent with his innocence.

8. It was never suggested at trial that his reaction was such that it could have carried any weight so far as rebutting the presumption was concerned and it is difficult to see even now how it would have assisted his attempt to rebut given that the learned judge did not accept the evidence which he did give with a view to explaining the presence of the drugs on his premises.

9. The second ground is that the learned judge erred in not holding that the location where the drugs were found cast some doubt on the Crown's case.

10. The two particulars given in support of this ground appear prima facie to have some substance in that it was the Applicant's case that his enemy through access to the flat next door could have planted the drugs in the flower pot in which they were found on the Applicant's verandah. And the contention is that it would have been doubtful if the Applicant himself would have kept the drugs there in such an open space, and also doubtful that he would allow them to remain there rather than to dispose of them by throwing them over the verandah if he suspected that the police officers were about to raid the place.

11. Those, of course, are matters which, as was pointed out to Mr. Wong in argument, even if they have raised a doubt, could not amount to proof of the fact which the Applicant had to prove, namely, that he was not in possession of the dangerous drugs.

The third ground is: -

"Having accepted that it was possible to place the bag of dangerous drugs on the flower pot by reaching out from the next door balcony, the learned judge erred in not holding that such possibility supported the Appellant's contention that the bag was planted there by his enemy, Mau Tau Ying or some other person in that the learned judge erred in assuming that the person who planted the bag would have the intention of retrieving it later."

12. This was a very good point made by Mr. Wong in that, if the learned judge was saying that the Applicant's story about the drugs being planted by an enemy was not capable of belief because of the difficulty in retrieving them, that observation overlooked the point that on the Appellant's case they were planted there by a person who was not interested in their retrieval.

13. However, when one looks at the learned judge's reasons for verdict, it does appear that she was not referring to that particular contention by the Applicant. I quote from her reasons for verdict on page 7 of the record:-

"I accept it is possible by reaching out from the next door balcony with some difficulty to place the bag of Dangerous Drugs on the flower pot in question. However I am of the view that whoever placed it there might not as easily retrieve it without risk of its dropping off the flower pot down 14 floors to the ground below. I am unable to accept that there could be a possibility that someone who has access to the next door flat would use the flower pot as a safe hiding place for his Dangerous Drugs with the intention of retrieving it later. The reasons is it is not as easy to retrieve it as it is to put it there."

14. Quite clearly, in making that observation, the learned judge appears to be dealing with a different proposition than the suggestion of a plant for the purposes of a frame up.

15. Notwithstanding the well-drafted grounds which have been put before us and notwithstanding the well argued submissions which were advanced before us today by Mr. Wong in support of those grounds, we have come to the conclusion that there is no substance in the Applicant's application and accordingly dismiss it.

Representation:

Mr. C. Coghlan, S.C.C. for Crown.

Mr. Michael Y.M. Wong (Leung Kin & Co.) for Appellant.