Tam Siu Kee and Others v. The Queen

CACC000633/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 633 OF 1969

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Coram: Pickering, J.

Date of Judgment: 31 October 1969

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DECISION

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1. Shortly after midnight on the night of 19th/20th June, 1969, police raided room No.506 of Hung Tao Apartment, 123, Woo Sung Street, 4th floor, Kowloon. In the room which, on the evidence, measured only 8 ft. by 6 ft., they found four men and a woman. Two of the men were sitting opposite to each other at a table gathering up from the table packets of what transpired to be dangerous drugs. The 3rd man was sitting on a chair cutting ginger whilst the 4th man and the woman were lying on a bed.

2. All five were subsequently charged under s.7(1) of the Dangerous Drugs Ordinance (41 of 1968) with possession of dangerous drugs for the purpose of unlawful trafficking. The two first-named defendants in those proceedings, who were the two men observed to be handling the drugs when the police entered the room, pleaded guilty whilst the other two men and the woman pleaded not guilty. These latter three were all convicted by the learned magistrate and they all now appeal against conviction. The first appellant, who was the man cutting ginger when the police arrived, was unrepresented upon the appeal as was the third appellant, the woman in the room. The 2nd appellant, who was the man lying on the bed with the 3rd appellant, was represented by Mr. Gunston. It is proper to remove any possible misconception by saying that no suggestion of impropriety arises from the fact that the 2nd and 3rd appellants were both lying on the bed and in fact the 3rd appellant is the wife of one of the 2 men who pleaded guilty to the charge.

3. At the hearing of the appeal, the grounds presented in support thereof by the 1st and 3rd (unrepresented) appellants consisted of nothing more than a few sentences in each case to the effect that the appellant was not guilty. Upon being asked whether they could suggest some reason why the learned magistrate was in error in convicting them, neither of these appellants could point to any such reason. On the basis of their appeals as presented in court nothing would have justified me in interfering with the convictions. I refrained however from dismissing their appeals there and then upon that ground because I wished to consider further the arguments put forward by Mr. Gunston on behalf of the 2nd appellant and it was possible that some of those arguments would overlap and enure to the benefit of the 1st and 3rd appellants.

4. Mr. Gunston put forward 8 grounds of appeal but the pith of his appeal lay in grounds 3,4,5 and 8 which may conveniently be dealt with together and which were as follows:-

5. It was the evidence of the 2nd appellant that he had been introduced to the 1st defendant (the husband of the 3rd appellant and one of the men who pleaded guilty in the court below) by a mutual friend some few days prior to his arrest and that the 1st defendant had invited the mutual friend and himself to dinner at this apartment house upon the night of 19th of June which was the Dragon Boat Festival. This invitation was confirmed by the evidence of the mutual friend Mr. Yuen Hui Fai who said that he had gone to the apartment house with the 2nd defendant after the conclusion of a film show which started at 5.30 p.m. This witness said that he himself had to eat his festival dinner at home but that in his presence, the 1st defendant and the 2nd and 3rd appellants had a meal in the apartment house room in question following which the 2nd appellant went to bed in the room alone. Shortly afterwards, the witness left the premises and he was not one of the persons found there when the police entered.

6. The 2nd appellant said that on that night he had dinner with the 1st defendant and the 3rd appellant in the presence of Mr. Yuen and after dinner, feeling rather tired, he lay on the bed to rest and fell asleep. He was aroused sometime after mid night by the 3rd appellant and then saw that the 2nd defendant in the Court below and the 1st appellant were also present as were two policemen. His friend Mr. Yuen had gone.

7. The 3rd appellant, in a statement from the dock also said that a meal was eaten and said that she subsequently fell asleep. When she awoke, the police had arrived. The 2nd appellant, she says, was still asleep and she awakened him.

8. The 2nd appellant denies any knowledge of the drugs prior to his awakening. The learned magistrate said that he did not believe that the appellant went to the room merely for the purpose of having a meal and he found that all the defendants were acting in concert and that the 2nd appellant was in possession of the drugs. I have had some difficulty in determining the basis of this finding because according to the defence evidence, the 2nd appellant was asleep when the police arrived and there is no evidence on the part of the prosecution to the contrary. Thus the first police witness, when asked whether he could tell whether the 2nd appellant was asleep prior to the witness revealing his identity, replied 'I can only say he was lying on the bed'. The second police witness when asked if, before the 2nd appellant got up from the bed, he had been sleeping, replied 'Yes, he was lying on bed'; and in answer to a subsequent question said, 'I don't know if defendant 4 was asleep or not.' There is thus no evidence that the 2nd appellant was awake when the police arrived and some evidence to the effect that he was asleep and had been sleeping since some time after 9 p.m. It follows that it cannot be said with certainty that the 2nd appellant was aware of what was going on at the table in this small room. The learned magistrate appeared to have inferred that because he went to that room with a mutual friend who later left, dined with the 1st defendant and his wife - the 3rd appellant, and was subsequently found in the room with them and two other men at a time when the 1st defendant and one of those other men were handling dangerous drugs, he was acting in concert with them and was in possession of the drugs. It is relevant to observe that there are no circumstances which would attract the presumption of possession to any of the appellants and in particular no evidence as to who had rented the room.

9. In the absence of proof of knowledge on the part of the 2nd appellant his conviction rests upon the tenuous circumstantial evidence to which I have referred above and indeed even had his knowledge of the nature and contents of the packets been proved, his conviction would still have rested upon that evidence for mere knowledge cannot of itself constitute possession. If I am aware that my friend with whom I am walking down the street, has a packet of dangerous drugs in his pocket, that knowledge does not of itself put me in possession of the drugs. It may perhaps be said of the 2nd appellant that since he is a policeman, greater suspicion would attach to him than to the 1st and 3rd appellants if it were proved that he knew of the existence of the drugs and failed to make any attempt to arrest the men handling them but, as we have seen, the evidence points to the conclusion that he was asleep rather than that he was awake and certainly the learned magistrate made no finding that he was awake.

10. Mr. Lucas for the Crown argued in good faith and with some force that the conduct of the 1st and 2nd defendants in handling dangerous drugs within a few feet of a sleeping policeman was extremely risky unless the policeman, the 2nd appellant, was a party to what was going on. When, however, I asked what was the evidence that the others in the room knew that the 2nd appellant was a policeman, counsel after further consulting the record first conceded that there was no such evidence and then went further and pointed out that the 2nd appellant had said in evidence that the 1st defendant did not know that he was a policeman. Nevertheless, counsel urged, the argument remained true whether or not the person who might at any moment have awakened was a policeman.

11. It seems to me that there would have been greater substance in this argument had there been evidence of the duration of the risk. On the evidence when the police arrived packets containing dangerous drugs were being gathered up from the table by the 1st and 2nd defendants but how long they had been exposed to view is entirely unknown. Whether they were being gathered up after a lengthy period of work upon them at the table or had merely been spilt upon the table from a container for the purpose of transfer to pockets or for some other fleeting purpose was quite unkown. On the evidence it is impossible to say whether the risk referred to by Crown Counsel was a momentary one or a risk of sustained duration.

12. I am inclined to agree that unless the 2nd appellant know what was likely to take place whilst he was asleep, the behaviour of the 1st and 2nd defendants was unusual. The question for a court of appeal however is not whether it thinks that the only rational hypothesis upon the evidence is that the accused is guilty but whether there was sufficient evidence upon which the magistrate, fulfilling his duty not to convict unless the inference of guilt was the only inference that he could rationally draw from the circumstances, could have convicted the accused (Plomp v. The Queen)⁽¹⁾. The learned magistrate (although he does not say so) presumably considered that guilt was the only inference which he could rationally draw from the evidence. If that is in fact the conclusion at which the magistrate arrived, it is one which, with respect, I am bound to regard, as highly dubious. The evidence pointed to the 2nd appellant having been asleep rather than awake at the time the drugs were seen to be in the possession of the 1st and 2nd defendants. There was no evidence that the 2nd appellant had ever set eyes upon the 2nd defendant or the 1st appellant (the man who was cutting ginger when the police arrived) before he was awakened by the 3rd appellant; no evidence that his association with the 1st defendant was anything other than that of a guest at a meal or that he had ever seen the 3rd appellant until that night. In the face of all these matters, it is difficult to say that the inference of guilt was the only inference which the magistrate could rationally draw from the circumstances and in my view there ought to have been a reasonable doubt in the magistrate's mind. The inference of guilt could not on the evidence be said so completely to have overcome all other inferences as to leave no reasonable doubt of guilt in the learned magistrate's mind. It would be dangerous to allow this conviction to stand and the appeal is allowed and the conviction quashed.

13. Whether the 3rd appellant was asleep or awake upon the arrival of the police is not clear. She herself said in her statement from the dock "Later I fell asleep. When I woke up, police had arrived." This statement appears to conflict with that of the 1st appellant who said in evidence "My sister-in-law asked me to cut some ginger. A moment later police arrived". There is evidence that the 3rd appellant is the sister-in-law of the 1st appellant. If any reliance is to be placed upon the phrase "a moment later" it would seem unlikely that the woman was actually asleep when the police came. The evidence of the 2nd appellant was to the effect that he had been asleep and did not know whether the 3rd appellant also slept on the bed.

14. For the purposes of the appeal however, I will assume that the 3rd appellant was awake at the entry of the police and there has never been any suggestion that the 1st appellant was not awake at that time. Accepting, as I think the learned magistrate was bound to do, that in that confined space both must have seen the packets containing the drugs and accepting further that they were aware of the contents of the packets has the Crown succeeded in proving anything more than knowledge? There is nothing in the evidence, apart from the physical presence of these two appellants in the room, to associate either of them with the dangerous drugs but the magistrate found that all five persons in the room were acting in concert and were in possession of the drugs. That seems to me to be far from the only inference that could rationally be drawn from the circumstances. The evidence failed to establish with certainty either physical possession or constructive possession in the sense that there had been shown to be an intention to possess coupled with an ability on the part of the appellants or any of them to reduce the drugs into their physical possession if so desired. (see Hon Sai King & others v. R.)⁽²⁾. All that the Crown has demonstrated in regard to these two appellants is knowledge of the existence and whereabouts of the drugs but such knowledge does not of itself put them into possession. The circumstances were certainly suspicious but, as has been said nauseam, suspicion is not enough.

15. Just as in the case of the first appellant, it would be dangerous to allow these convictions to stand and they must be quashed.

Representation:

1st & 3rd Appellants in person

Mr. Lucas, c.c., for Respondent

(1) 37, (1963-64) A.L.J. 191.

(2) (1950) 34 H.K.L.R. 319.