Chan Kam Ming v. The Queen

CACC000674/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 674 OF 1968.

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Coram: Huggins, J.

Date of Judgment: 5 December 1968

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JUDGMENT

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Huggins, J.:

1. The appellant was charged with unlawful possession of dangerous drugs. He appeals against conviction and against the sentence of 21 months' imprisonment imposed in respect of the offence. The evidence for the prosecution was that on the evening of 8th October the appellant, who had that day been before a magistrate's court and been convicted of an offence of unlawful possession of dangerous drugs for which he was sentenced to 5 months' imprisonment, was seen by a warder in the Victoria Reception Centre to be "acting in a suspicious manner" and to be "shivering". He was searched and a packet of what was suspected to be dangerous drugs was found in his pocket. In cross-examination the witness said "the packet was wrapped in toilet paper", by which I understand him to have meant that the drugs were in a double wrapping, first of cellophane paper and secondly of toilet paper. Despite that evidence, in cross-examination it was suggested to the appellant that the packet was not wrapped in paper but he insisted that it was. On analysis the contents of the packet were found to be 1.35 grammes of diacetylmorphine hydrochloride.

2. The defence was that the appellant did not know the packet contained dangerous drugs. He said that the packet was given to him by another prisoner, who had said that the packet contained Chinese tobacco. He called the other prisoner as a witness and this witness confirmed that he had given to the appellant a packet wrapped in toilet paper. He said he had told the appellant that it contained Chinese tobacco and that they would smoke together. He himself did know that the contents wore dangerous drugs.

3. In his Statement of Findings the learned magistrate said that he found it necessary to say only that he entirely accepted the evidence of the prison warder as being the truth. With respect to him, however, it seems to me that that was not enough. The charge was one of unlawful possession. As a general rule there can be no possession without knowledge of the existence and nature of the thing possessed. For this reason s.16 of the Dangerous Drugs Ordinance provides that in certain circumstances the court shall presum that an accused person knows of the existence and nature of the contents of a receptacle. It would have been open to the learned magistrate in this case to rely upon the presumption which arose from the fact that the appellant had in his custody and control a packet which contained dangerous drugs. He has not, however, made any reference to that section and it is to be assumed that he found it unnecessary to rely upon its provisions: see YU Wai-ming v. Reg.⁽¹⁾ and IP Kam-shing v. Reg.⁽²⁾ That being so it was for the prosecution to establish affirmatively that the appellant was in possession. There was, in my view, no evidence which justified a finding that the appellant knew what was in the packet. On the contrary the appellant and his witness told a story which on the fact of it was not incredible. It is strange that Yu Chat should admit that he gave the packet to the appellant if that were not true, because his confession clearly laid him open to prosecution for an offence of unlawful possession of dangerous drugs. Yu Chat was not asked why he handed the packet to the appellant. One may have grave doubts whether he would, as he suggests, hand over the packet for safe keeping without revealing its true nature but it is not impossible that he should have done so. The fact that the appellant was seen acting in a suspicious manner would be as consistent with his knowing himself to be in wrongful possession of Chinese tobacco as with his being in unlawful possession of dangerous drugs: one cannot properly infer from his conduct that he must have known what the contents of the packet were. The appellant's "shivering" was possibly symptomatic of withdrawal of the drugs to which he had become accustomed but it was not evidence from which the learned magistrate would have been justified in drawing any inference of knowledge of the contents of the packet.

4. In my view as the presumption was not relied upon there was not in this case sufficient evidence upon which to found the conviction and the appeal must be allowed. The conviction is quashed and the sentence set aside.

5th December 1968.

Representation:

Appellant in person

Mr. Evans for the Respondent

(1) Cr. App. No.169 of 1968.

(2) Cr. App. No.524 of 1968.