Lung Siu King v. The Queen
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CACC000672/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 672 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 4 December 1968 ----------------- JUDGMENT ----------------- Huggins, J. : 1. The appellant was charged before the magistrate on three charges of unlawful possession of dangerous drugs. She was acquitted on one of those charges and I need say nothing more about it. She was convicted on the other two charges and she now appeals against conviction. 2. The substance of the argument upon the appeal has been that the learned magistrate Grew unjustifiable inferences from the facts which he found to be proved. The evidence accepted by the learned magistrate was follows. At 8.30 p.m. on the 18th September 1968 the police visited a flat. In the flat they found the appellant (a woman of 42 years of age), a girl aged 18 years, a girl aged 8 years and a boy aged 4 years. The door of the flat was opened by the 18-year old girl who, it appears, had been ironing when the police rang the bell. The appellant was sitting on a sofa holding the small boy, and the 8-year old girl was beside her. In cross-examination one of the police witnesses said that the appellant was "holding her son - the boy". This answer was not clarified and it is not clear whether the witness corrected himself or whether he was in fact giving evidence of a relationship. The learned magistrate made no finding of a relationship and indeed quoted this part of the evidence in inverted commas but omitted the apparent correction. At the window was found a pair of lady's slacks, one leg of which had been sewn up so as to form a large pocket, and in the pocket were found some 180 grammes or dangerous drugs. The precise position of the slacks is not entirely clear but the learned magistrate found that the leg containing the drugs was outside the window. Immediately outside the window, and at right angles to the wall, was a rack which supported one end of the bamboo poles used for drying laundry. 3. The suggestion of the defence was that these slacks and the drugs in them had fallen from premises above. One of the police witnesses said this was impossible because there were bamboo poleson the trousers but a second witness said that he had seen the pair of trousers"on" a bamboo pole when he first made an inspection of the flat. This conflict was not referred to by the learned magistrate. The subject matter of the other charges was traces of diacetymorphine hydrochloride foung on a scale placed inside the back of a refrigerator. 4. When the police arrived they identified themselves and told the appellant the reason for their visit. The notes of evidence then say (and I assume that part of this is in direct apeech although it is not in niverted commas):
When the drugs were found in the slacks the appellant was asked whether they belonged to her and she said they did not. When the scale was found she was asked whether that belonged to her and she replied:"I did not know". She was asked whether she was the owner of the house and she replied "Yes". The slacks did not fit either the appellant or the 18-year old girl. There was no evidence whether the appellant's present husband lived in the flat or not and the appellant herself did not give evidence. 5. From the facts found the learned magistrate inferred that the flat was the appellant's home, but counsel for the appellant contends that such an inference was unjustified: it was not impossible that the appellant was the landlord and that she was visiting a tenant's flat for the evening or merely looking after the tenant's family. The learned magistrate did not say expressly that he believed the evidence of the police that the appellant had said "there are no such things in these premises" but as he clearly believed that she made the other statements attributed to her I think this must have been one of the factors which he considered. It is reasonable to ask why, if she were not living in the flat, the appellant should have made any reference to the activities of her former husband when she was told the purposes of the search. In these circumstances I think that the learned magistrate was entitled to infer that this was the appellant's home. 6. That, however, is not the end of the matter: a person who owns and occupies a flat is not necessarily in poeeseeion of everything in that flat. Counsel concedes that the two young children may reasonably be left out of account but he submits that the 18-year old girl might have been in possession of the drugs without the active assistance of the appellant. what in Hong Kong is perhaps even more important is that in the absence of any evidence that the appellant's present husband does not live in the flat there is a possibility that her husband was in possession of the drugs without the active assistance of either the appellant or the girl. 7. There was some argument whether the learned magistrate relied upon the presumption laid down in s.16 of the Dangerous Drugs Ordinance. He made no mention of the section and as I said in Yu Wai-ming v. Reg. (1) such omission must be taken to indicate that the learned magistrate did not rely upon the provisions of the section. That does not mean, of course, that if the necessary facts are found the presumption does not of necessity arise but merely that the magistrate has not thought it necessary to pray the presumption in aid and therefore has not considered whether or on the presumption has been rebutted. In these circumstances it is not necessary for me to consider the apparent conflict between on the one hand Cheung Chung Man v. Reg. (2) and Wong Mau Ting v. Reg. (3) and on the other Wong Sze Yun v. Reg. (4). 8. I agree with counsel for Crown that the prosecution were not obliged to prove exclusive possession in the appellant but I do not think that assists him : the argument here is that there is no sufficient evidence that she was in possession at all, whether exclusively or jointly. It was said in Plomp v. Reg.(5) that upon an appeal the question is not whether the appellate court thinks that the only rational hypothesis open upon circumstantial evidence is that the appellant is guilty but whether the appellate court thinks that upon the evidence it was open to the judge of fact to be satisfied beyond reasonable doubt of the guilt of the accused. It could not properly be said that the only rational inference was that the appellant was in possession. Undoubtedly there was matter of grave suspicion but after the most anxious consideration I have come to the conclusion that it was not open to the magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant. In other words I do not think that there was evidence proper to be left to a jury. If no statutory presumption under s.16 arises against a person merely because he is the tenant of presimes in which dangerous drugs are found (Wong Sze Yun v. Reg.(4)) a fortiori evidence that he is tenant is not evidence of possession of those drugs. In my view the other facts found did not justify a finding that the appellant had knowlege of the existance of these drugs. It was argued that lack of knowledge was not raised as a defence. With respect I cannot agree: upon a plea of Not Guilty every material fact is put in issue. No adverse inference ought to be drawn from the fact that the appellant did not go into the witness box and say that she did not know the drugs were there and her failure to do so was certainly not "tantamount to an admission that she did know". 9. For these reasons the appeal must be allowed and it is strictly unnecessary for me to express any opinion on the omission to refer to the contradiction in the evidence about the position of the slacks. Nevertheless I would refer to the words of Lord Simonds in Watt v. Thomas (6) where he said at p. 492:
10. The convictions are quashed and the sentences set aside. 4th December, 1968 Representation: Mr. G. Ching for the Appellant Mr. Alexander for the Respondent (1) Criminal Appeal No. 169 of 1968. (2) 1957 H.K.L.R. 500. (3) 1967 H.K.L.R. 530. (4) 1963 H.K.L.R. 68. (5) (1963) 110 C.L.R. 234. (6) 1947 A.C. 484. |