The Queen v. Fung Chi-ming and Others

CACC000674/1983

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Li, J.A.

Date: 4th August, 1983

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JUDGMENT

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1. The appellants, three of them, were convicted of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The only evidence against them was that at the material time, a party of police went up to a landing between the first and second floor of a building. They saw these three appellants together with another two persons crouching down forming a circle. In the centre of the circle was a heap of materials consisting of some packages of drugs (the drugs being subject matter of this charge), a pair of scissors, a small knife, some betting slips and newspapers.

3. The 1st prosecution witness on being cross-examined said they froze when the police arrived. He did not see anybody touch any of the things in that heap. However, they were searched and nothing material was found on any of the five persons.

4. In addition to these five persons, there were three persons sitting on stools behind the circle of the five looking on. That was the prosecution evidence.

5. Each of the appellants gave evidence and each said they were only interested in horse racing. One appellant said he went there to discuss racing tips, another said that he was going to place a bet or listening, and another said he was listening to the radio broadcast of a night racing. That day was a Wednesday and there was evening racing.

6. The learned magistrate set out the evidence at great length in respect of each witness - prosecution and Defence, and simply came to the conclusion at page 23, in which he said:

"I am hot satisfied prosecution had proven this amended charge against D6, 7 and 8 beyond reasonable doubt and they are acquitted and discharged."

These were the three persons who were sitting on stools looking on. The magistrate went on to say:

"I am, however, satisfied prosecution had proven this amended charge against D2, D3, D4 and D5 beyond reasonable doubt. I find D2, D3, D4 and D5 guilty of this offence as charged."

7. In the course of appeal, learned counsel for the appellants attacks, first of all, the magistrate's finding in that he said:

"It is clear from P.W.1 and P.W.2's testimony that D1, D2, and the three appellants were engaged in and in the process of wrapping up packets of dangerous drug. As for D6, D7 and D8 although they were close behind the other co-defendants, they were only looking on."

She says that there was ho evidence to support that any of the appellants was in the process of wrapping up packets of dangerous drugs. Drugs were there, but there is ho evidence to support the finding of wrapping or even in the process of wrapping.

8. This case seems to be on all fours with criminal appeal 451 of 1966 in Lam Wah Ok v. The Queen ⁽¹⁾ in which Mr. Justice Rigby, as he then was, said:

"The learned magistrate, in the course of his findings, has done ho more than simply to recite at some length the evidence of the prosecution witnesses, the evidence of the defence, and then to conclude with the statement that having heard all the witnesses he was "satisfied beyond a reasonable doubt that the accused was guilty of the offences charged." The offence of possession involves some element of dominion or control over the article said to be possessed. The learned magistrate has made ho attempt to indicate why he was satisfied that the appellant was in possession of these drugs or upon what particular fact of set of facts he has drawn the irresistible conclusion that the appellant must have . been in possession, whether actual or constructive, of the drugs found. No doubt the issue of possession must in so very many cases depend upon the inferences to be drawn from the facts. But apart from the fact that he was present together with the trio other persons when the drugs were found there is really no evidence directly connecting the accused with possession or joint possession of the drugs."

That seems to apply in the present case and I respectfully adopt the learned judge's approach.

9. There was, of course, at the back of my mind the case of Searle⁽²⁾ in which drugs were found in the coach with a group of holiday makers. It was said that no one could be found to be in possession. The drugs were simply in a coach with passengers. It is not possible to charge the whole group of holiday makers as being in possession of the drugs.

10. For these reasons, I am of the opinion that there is insufficient evidence to convict the appellants of the present charge. Having regard to the finding that the three other defendants on the stools were innocent of the charge simply because they sat a little further from the appellants and was looking on, the conviction of the appellants appears to be inconsistent. There was not sufficient evidence to pin-point any of the appellants being in possession.

11. For these reasons, the appeal is allowed, the conviction is quashed and the appellants are discharged.

(1)    Criminal Appeal 451 of 1966

(2)    1971 Criminal Law Review 592

Representation:

Miss Esther Toh (D.L.A.) for appellants

Mr. A. Bruce (Crown) for respondent