Wong Ching-kui and Another v. The Queen
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CACC001103/1978
----------------- Coram: Roberts, C.J., Huggins, J.A. and McMullin, J. Date of Judgment: 25 June 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: 1. This is an appeal by Wong Lai-ngor, the 2nd appellant, who was also the 2nd defendant at the trial, against her conviction in the Kowloon District Court, for the possession for the purpose of unlawful trafficking of 501.6 grammes of a mixture containing salts of esters of morphine. 2. On the afternoon of 24th July of last year a squad of police, acting on information and led by Police Inspector Walsh, raided a flat in Nathan Road, under the authority of a general warrant issued under the Dangerous Drugs Ordinance. On entering the premises, the police party found the 2nd appellant and her husband, the 1st appellant, in the sitting room of the premises with two other Chinese men. The police party disclosed their identity and conducted a search of the premises. 3. In what has been described as the master bedroom of the flat Inspector Walsh and a woman sergeant found various articles. On a table beside the bed they discovered three pieces of tinfoil with traces of drugs in them, some taper papers and a cigarette packet which also contained traces of a drug. Under the table was found a shoe-box, which contained a plastic bag inside which was what was later identified as about a pound of salts of morphine. Small packets of drugs were also found in the shoe-box and on the table and some silverfoil was found in a wardrobe in the bedroom. 4. It is not disputed that the 1st defendant was the tenant of these premises, and the tenancy agreement making this clear was produced to the trial court. 5. After the various exhibits had been seized in the bedroom the police, as Inspector Walsh describes it, made enquiries, and were told by the 1st defendant that the room was his bedroom which he occupied with his wife, who was the 2nd appellant. Inspector Walsh then asked the two accused who had the keys to the flat, and gave evidence that the 2nd accused produced two keys, which were found to fit the entrance doors. 6. The story which was told by the 1st defendant when he was cautioned was that another man called Ah Keung had come to visit him that afternoon, carrying a plastic bag, and that Ah Keung asked if he, Ah Keung, could borrow the bedroom in order to smoke some drugs there. Ah Keung shut himself in the bedroom for about forty minutes and then left saying that he would come back for his plastic bag later. 7. The 2nd defendant, from the beginning asserted that she knew nothing about the presence of the drugs, that she had fallen asleep whilst she was watching the television and had been unaware of Ah Keung's visit, or that there were drugs in the bedroom until they were shown to her by the police. 8. In response to the verbal caution which was given to her shortly after the drugs were found, she said that the things were left by Ah Keung. She explained this by saying that she gave this reply because she had heard her husband say this to the police. 9. There was considerable argument as to whether the judge was correct in deciding that there was sufficient evidence of possession, custody and control by the 2nd defendant so as to justify the introduction of the presumption under section 47 of the Dangerous Drugs Ordinance. In view of the view we take of the way in which the judge dealt with an important part of the evidence in assessing the credibility of the 2nd appellant, it is not necessary for us to decide whether the judge was justified in finding that the presumption arose. Had we been obliged to do so it is likely that we should have found that the 2nd defendant had sufficient possession, custody or control, of what was the matrimonial bedroom, to give rise to the presumption. 10. On the assumption that the burden was vested, by virtue of the presumption, on the 2nd defendant, was the judge right in the manner in which he decided that the 2nd appellant was not worthy of belief? At p.44 of the record he says that, having seen and observed the demeanour of the two accused, he was convinced that they were not honest and reliable witnesses and that they had not told the truth. The difficulty arises when we consider in detail the reasons given by the judge for reaching that conclusion. He refers to the pile of tinfoil paper which was found inside the wardrobe in the bedroom. From this he reasons that the tinfoil indicated strongly that the accused were connected with the dangerous drugs found elsewhere in their bedroom. They certainly knew, he went on, the significance of the tinfoil papers, otherwise they would not have chosen to deny that they were found inside the wardrobe. 11. While this was a justifiable comment in relation to the 1st defendant it was not justified in relation to the 2nd. At p.30 of the record the 2nd defendant denies ever having seen the tinfoil before. At the top of p.31 the question is put to the 2nd defendant:
Answer:
As I interpret that last question and answer, in view of the total denial which has shortly preceded it, the 2nd defendant is doing no more than saying that she did not see it being found in the wardrobe. 12. Immediately after his finding that the 2nd defendant had denied that the tinfoil was found in the wardrobe, the judge goes on to take judicial notice of the use to which tinfoil can be put for the smoking or wrapping of dangerous drugs, and adds that the explanations being given by the two accused are unconvincing and unacceptable. It is of course a matter of speculation as to how much weight the judge gave to this sequence of reasoning in reaching his conclusion that the 2nd defendant was not to be believed. 13. However, we must say that we consider there is a real possibility that the supposed denial of the 2nd defendant was a very important factor in his conclusion that her evidence was unreliable and that she was not to be believed. In these circumstances though not without misgivings, we feel that it would be unsafe to uphold the conviction. Consequently we give the 2nd defendant leave to appeal against conviction. The appeal is upheld and her conviction quashed. Representation: A. Huggins (Hampton, Winter & Glynn) for both appellants. G.W. Alderdice for the Crown/Respondent. |