Lo Kwong-hing and Another v. The Queen
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CACC000593/1979 [Unlawful trafficking. Presumptions.]
Coram: Roberts, C.J., Li, J. and Mr. Commissioner de Basto Date of Judgment: 17 January 1980 ----------------- JUDGMENT ----------------- Introduction 1. The two appellants were jointly charged, together with PANG King-shu and CHAN Fuk-har, with having in their possession 546.7 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein, contrary to section 7 of the Dangerous Drugs Ordinance. 2. The particulars alleged that they were in possession of this quantity of dangerous drugs on the 24th November, 1978 at Flat 8, on the 14th Floor of Wing Wah Building, Whampoa Estate, Kowloon. 3. PANG King-shu, the first defendant, pleaded guilty at the outset of the trial, but was not sentenced until the trial of the other three defendants had been concluded. He gave evidence for the defence. He was sentenced to five years' imprisonment. 4. The second defendant, CHAN Fuk-har, was acquitted at the end of the trial. 5. The third and fourth defendants, both appealed against conviction. The third defendant also appealed against sentence, but withdrew this appeal at the outset of the hearing before us. Summary of evidence 6. At about 12.30 p.m. on the 24th November, 1978, a police party from the Narcotics Bureau, under the command of Detective Inspector Howard, carried out a raid at Flat 8 on the 14th Floor of Wing Wah Building, Whampao Estate, Kowloon. 7. In addition to the Inspector, the party included a detective sergeant and three detective constables. 8. Detective Sergeant Lau (P.W.5), having identified the flat which was to be raided by the police party, remained outside in a position from which he could keep a watch on the windows of the flat. 9. Inspector Howard and the three detective constables went to the door of the flat. D.C. 14718 (P.W.2) rang the door bell. The inner wooden door was opened by PANG King-shu, the first defendant. 10. P.W.2 revealed his identity, whereupon the first defendant slammed the inner wooden door and shouted loudly "Hing Chai get up quickly get implements". The Inspector gave instructions to the police party to break down the iron grille and the wooden door, a process which he estimated took 1 to 1½ minutes. 11. While they were doing this, some of them heard the sound of a toilet flushing inside the flat, which was a small one with a total area of about 400 square feet. 12. When the door had been forced open, Inspector Howard entered first. As he did so, he saw the first defendant coming out of the bathroom (Room B), and the door of a bedroom (Room A) opening. Both the third and fourth defendants were inside Room A. Drugs found in flat 13. All the windows of Rooms A, B and C (another bedroom) were open. Members of the police party searched the flat and found a quantity of partially dissolved No.3 heroin in the toilet bowl, in Room B, and particles of the same substance on the floor of Room B and in the bath. 14. The contents of the toilet bowl were put into a bucket and subsequently analysed. They were found to contain 165.6 grammes of a mixture containing 8.2 grammes of salts of esters of morphine. 15. Cotton wool swabs were taken from the floor and the bath in Room B and traces of salts of esters of morphine were found on both swabs. 16. In Room A were found a $10 note containing .5 of a gramme of mixture containing .1 gramme of salts of esters of morphine, and a spoon which showed traces of the same substance. 17. In Room C two packets of heroin were found in a pocket of the first defendant's shirt, which he was wearing at the time. In the same room were found a quantity of heroin, wrapped in a $10 note on the dressing-table and two cigarettes containing traces of heroin under the bed. 18. Sergeant Lau, when the police party were trying to break into the flat, saw three bags thrown from a window in Room A. He was not able to identify the thrower. The Sergeant took possession of the bags, which were subsequently analysed and found to contain 28 small packets in which was a mixture weighing 325 grammes containing heroin. 19. In addition, there was inside one of the bags a set of Chinese scales, on which there were traces of heroin, various empty bags and pills, and a name card bearing the name of the first defendant. Keys 20. Two bunches of keys were discovered by the police in Room A. 21. Keys from one bunch fitted the main gate of the flat, the iron grille, the wooden door, Room A and Room C. One key on the second bunch fitted Room A. Though the police officer concerned, P.W.4, does not say so in terms, it must be inferred that none of the other keys on the second bunch fitted any locks in the flat. 22. The third defendant said that the keys did not belong to him but to the first defendant. The fourth defendant said that the keys did not belong to him. 23. The third and fourth defendants admitted to members of the police party that they had been sleeping in Room A the previous night. Submission of no case to answer 24. The first principal point taken by counsel for the appellants was that the Judge should have ruled, at the conclusion of the Crown's case, that there was no case to answer in law against either appellant. 25. As we indicated to counsel for the appellants, we did not think that there was any substance in this submission. The case against the two appellants, at the end of the evidence for the Crown, can be summarised as follows -
26. A submission of no case was made by counsel for the second, third and fourth defendants at the trial. The Judge ruled that there was, and said that he would give his reasons when he delivered his verdict. 27. In his judgment, he finds that the Crown had established, beyond a reasonable doubt, facts which had given rise to the presumption under section 47. He does not say whether he considered that the presumption arose under s.47(1)(c) or s. 47(1)(d) of the Dangerous Drugs Ordinance. In our view, there was sufficient evidence for the presumption to have arisen under either paragraph. 28. On their own admissions, the third and fourth defendants had been occupying Room A since the early hours of the morning. A person who sleeps in a room has a sufficient degree of possession or custody of that room and its contents to activate the presumption under section 47(1)(c). 29. The finding of the two bunches of keys, which were in conspicuous places in the room occupied by the third and fourth defendants, by virtue of which they could be said to have been in control of the keys, would have been sufficient to give rise to the presumption under section 47(1)(d). 30. Furthermore, the evidence, even in the absence of presumptions under section 47, would have been sufficient prima facie evidence to amount to a case to answer. Unsafe and Unsatisfactory 31. The second main ground of appeal was that the convictions of the third and fourth defendants were unsafe and unsatisfactory. 32. In support of this submission, counsel for the appellants advanced twelve arguments. (1) That the judge's finding that the third and fourth defendants visited the flat to organize the packaging of dangerous drugs in conjunction with the first defendant could not be supported by the evidence. 33. We see nothing wrong with this conclusion of the judge, which is an inference from the facts which he found to be established. Among these was clear evidence that heroin was being weighed and packeted. If the judge came to the conclusion, as he did, that the third and fourth defendants were acting in concert with the first defendant, his inference was justified. (2) That there was no evidence to support the judge's finding that the third and fourth defendants threw the bags out of the window. 34. This also was an inference drawn by the judge from various facts which he had accepted. He found that both appellants were in Room A at the time when drugs were thrown from the window of that room. From this finding it followed that both appellants had a chance to throw out those drugs. The third defendant (Hing Chai) had been asked by the first defendant "to get the implements". The judge would have been entitled to regard this, though he does not say so, as a plea by the first defendant to the third defendant to dispose of the drugs and associated equipment. 35. The judge comes to the conclusion that the first defendant did not have time to dispose of the drugs, in Room B and in Room A, within the period of one minute which (as he finds) it took the police party to burst into the flat. From this the judge reasons that the bags must have been thrown from Room A by someone other than the first defendant. As the third and fourth defendants were in the room he concludes that they must both have been responsible for throwing the bags out. 36. To this extent, he went too far, in that the evidence does not establish whether one or both had thrown the bags out. Nevertheless, if only one of them did it, the other, being with him in the small room, must have known. 37. Accepting that the judge went too far in finding that both appellants threw the bags out of the window, we do not see that this would have made any difference to the result. 38. Once the presumption under section 47 had arisen against the third and fourth defendants, the burden shifted to them to satisfy the judge on the balance of probabilities that they were not in possession of the heroin found inside the premises or thrown from the window. 39. They failed to discharge this burden because the judge disbelieved their story that they knew nothing about the presence of the drugs in the flat and did not accept them as being honest witnesses or as telling the truth. Even if he had directed himself to the fact that there was no evidence to show which of these two defendants had thrown the bags from the window, though he was satisfied that one of them had, the presumption would still have arisen and he would without deoubt still have found that the appellants had not discharged the burden which the presumption placed on them. (3) That the judge was wrong in finding that the two sets of keys were used by the third and fourth defendants. 40. These two defendants were found in Room A. They admitted sleeping the night there. Also in the room were two sets of keys which were not concealed. It was therefore open to the judge to find that they were in control or possession of the bunches of keys. If he came to that conclusion, it is a reasonable step to infer that they were being used by them, once he had disbelieved (as he did) the evidence given about the keys by the first, third and fourth defendants. (4) That the judge was wrong to find that the third and fourth defendants were in Room A when Inspector Howard entered the flat, because P.W.2 had given evidence that the first defendant and another man were leaning against the main door of the flat to try to obstruct entry by the police when P.W.2 followed the Inspector into the premises. 41. Inspector Howard's evidence is clear and unambiguous. He had no doubt that the third and fourth defendants were in Room A when he entered the flat. The judge accepts this. 42. The evidence of P.W.2 is confused. At one point he says that, as he entered, he saw the first defendant come out of the toilet, which was in Room B. But later in his evidence, he says -
43. Clearly both versions cannot be true. The first defendant could not, at the same time, have been coming out of Room B and holding onto the door preventing the police party from getting into the flat 44. The judge did not specifically refer in his judgment to this conflict. If he had done so, we feel that his conclusion that he could rely on the evidence of Inspector Howard would not have been changed by the confused testimony of P.W.2. (5) That the Judge's finding that the first defendant was known as "Kin Chai" and the third defendant as "Hing Chai" was not supported by the evidence of P.W.4. 45. It is clear that P.W. 4 was mistaken and could not be relied on in this matter. 46. The first defendant admitted in evidence that he was known as "Kin Chai" and the third defendant agreed that he was called "Hing Chai" by the first defendant. There is no substance in this point. (6) That the judge was wrong in holding that the appellants were in possession of all the dangerous drugs in the flat. 47. The judge could have come to the conclusion that the appellants were in possession of the bulk of the dangerous drugs, if he decided that the third and fourth defendants were acting in conjunction with the first defendant in connection with the packaging or distribution of heroin, as evidenced by the scales, the spoon and the division of the drug into small packets. 48. However, we do not think they could reasonably have been convicted of possession of the heroin found on the person of the first defendant or in the cigarette ends or the $10 note in Room C. Nevertheless, a defendant is not entitled to be acquitted of the charge if the evidence satisfies the judge that he was found in possession of a lesser amount than that contained in the particulars of the charge. 49. It is desirable in such circumstances that the judge should indicate how much of, the amount charged he finds the defendant guilty of possession of, since this has a substantial effect on the sentence which may be passed. 50. In this instance, the amounts of which the third and fourth defendants could be said not to have been in possession were such a small part of the total quantity with which they were charged that it can have had no effect either on the conviction or on the sentence imposed by the judge. (7) That the judge did not consider the case against each of the appellants separately. 51. Throughout his judgment, with one exception, the judge dealt with the evidence against the third and fourth defendants together. This is not surprising in view of the evidence, which linked these two defendants at all points. 52. There is nothing in the judgment which suggests that the judge misdirected himself to the extent of assuming that a conviction of either of the two defendants must necessarily involve the conviction of both or that it was not necessary for him to consider the evidence separately against each of them. 53. It is right to assume that a District Judge is familiar with this elementary proposition of law and in the absence of anything to indicate that he misdirected himself on the matter we are not prepared to infer that he did. (8) That the District Judge did not properly assess the evidence adduced before him. 54. This was a general ground which was not pursued. (9) That the judge was wrong in coming to the conclusion that both appellants were acting in concert with the first defendant. 55. We regard this as a reasonable inference to be drawn from the facts which have been referred to above. 56. The first defendant pleaded guilty and gave evidence for the defence, in the course of which he accepted full responsibility for the presence of the drugs in the flat, asserting that the third and fourth defendants knew nothing about them. The judge rejected this evidence, save in so far as it amounted to an admission of his own guilt, which was established by his plea, since he concluded that the first defendant was not worthy of belief. 57. So long as the presumption that the third and fourth defendants were in possession of the drugs in the flat, was not discharged, the inference is irresistible that they were acting in concert with the first defendant, whose possession of the drugs was beyond doubt. They must all have been acting together. (10) That the judge was wrong in determining the guilt of the appellants on the basis of whom he believed, or was wrong in finding the appellants guilty because they had lied. 58. We do not read the judgment in this way. The judge finds that the Crown had established beyond a reasonable doubt the facts from which the presumption under section 47 of the Dangerous Drugs Ordinance arose. 59. The burden then shifted to the third and fourth defendants to discharge the presumption on the balance of probabilities. 60. He found that they had failed to do this because he did not believe the explanation which they put forward. 61. This is the correct approach. We can find no fault with it. (11) That inadmissible evidence was adduced in relation to the possession by the third defendant of $10,000 in cash at the time of his arrest in the flat. It was said that this evidence was irrelevant and highly prejudicial and should have been disallowed. 62. $10,000 in notes were found wrapped in newspapers in Room A. The third defendant asserted that he had taken the money with him to the dance hall the previous night and that he had brought it to the flat when he came in the early hours of the morning. 63. He was asked a number of questions in cross-examination by counsel for the Crown. The appropriate passage is as follows -
64. If we understood him correctly, counsel for the appellants was submitting that cross-examination about the presence of this money was prejudicial in that an inference might be drawn that possession of such a large sum by the third defendant showed that he was involved in unlawful trafficking in drugs. 65. No questions directed to any such inference were put. Those which were asked appear to be intended to establish that the occupation of Room A by the third defendant was of a more permanent nature than he had asserted. 66. Directed to this issue, the questions seem to us to be perfectly proper and entirely relevant. (12) That the judge was wrong in permitting cross-examination of the fourth defendant on a statement which he made to the police five days after his arrest. 67. This statement which was described as a "witness statement" was presumably not made after caution. In any event, no effort was made by the Crown to establish the voluntary nature of the statement on which these questions were based. 68. Counsel referred us to the recent case of TSANG Po-man v. R.(1) in which, on an appeal from a decision of a magistrate, the Chief Justice ruled that the Crown should not cross-examine on statements which were not introduced in evidence as part of the Crown's case, since the accused would have had no opportunity to attack the voluntary nature of those statements. 69. In that case he allowed an appeal against conviction on the ground that he did not feel that, in the absence of the answers to questions based on that statement, the magistrate would necessarily have come to the same conclusion. 70. In this instance, the questions related to a very minor discrepancy between the evidence given by the fourth defendant at the trial and the statement given by him to the police. 71. In the statement to the police he is stated to have said that he, the fourth defendant, had suggested to the third defendant that they should go and sleep at the first defendant's address. 72. In evidence, however, he said that the third defendant had telephoned the first defendant and that the first defendant invited them to go to the flat. 73. This is, at most, a discrepancy, which might have influenced the judge to a minor degree in reaching his conclusion as to the credibility of the third defendant. 74. There is nothing in his judgment to indicate that he gave any account to it at all. Even if he had done so, we cannot feel that this piece of evidence could have had any significant effect on the conclusion which he reached. 75. It follows that we do not regard the verdict as unsafe or unsatisfactory and accordingly refuse leave to appeal against conviction. Representation: Sanguinetti & Miss R. Yeung (H.M. So & Co.) for appellants Aiken for crown/respondent (1) Crim. App. 948/79. |
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