Cheng Chung Yat v. The Queen
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CACC000676/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 676 OF 1969 -----------------
----------------- Coram: Full Court (Scholes, Ag. S.P.J. & Mills-Owens, J.) Date of Judgment: 17 April 1970 ------------------------------------------- REASONS FOR DECISION ------------------------------------------- 1. In the District Court the prosecution proceeded against the appellant on two charges in respect of the same dangerous drugs, at the same place, and on the same date, namely for the offences of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, and of being the owner, permitting or suffering premises to be used for unlawful trafficking in dangerous drugs, contrary to section 37 of the same Ordinance. These charges were, although not so stated on the charge sheet, clearly laid in the alternative, no doubt on account of the prosecution considering that there was evidence to support each of the alternative charges. The drugs consisted of 45.8 grammes of barbitone, 121.6 grammes of salts of esters of morphine, 2.1 grammes of prepared opium and 78 grammes of opium dross. 2. At the close of the case for the prosecution the learned trial judge ruled, on a submission of no case to answer on either charge, that there was no case to answer on the second charge and acquitted the appellant of it, but that there was a case to answer on the first charge, and after the calling of evidence for the defence he convicted the appellant on that charge. Against that conviction the appellant appealed, and at the end of the hearing of the appeal we came to the conclusion that the conviction could not be allowed to stand, and quashed the conviction and sentence and acquitted the appellant, stating at the time that we would give our reasons therefor later, which we now do. 3. The facts of the case shortly were that on the 15th June, 1969, at about 6.30 p.m., the police raided No. 61, Pak Sha Wan, a plot of land on the shores of Hebe Haven in the New Territories. The plot of land consists of a heavily overgrown rectangular area on the side of a hill running down to the beach, and it is approached from one end of the rectangular area by a flight of stone steps from a small public car park which is at the side of the main road from Kowloon to Sai Kung and above the plot. On the plot are three huts which have been referred to as huts Nos. 1, 2, and 3 respectively. On coming down the steps one first reaches hut No. 3 and then hut No. 2 which huts are close together and in about the centre of the rectangle. A path in front of these huts leads to a small area at the opposite end of the rectangle to the entrance end, separated off by a low chicken wire fence, and in this area is hut No. 1. Huts Nos. 2 and 3 have a kitchen, store room, and lavatory, and hut No. 1 has its own separate lavatory. In the wire fence is a small gate, which has no lock, but which can be secured by a bolt easily accessible from either side. The appellant and his family lived in huts Nos. 2 and 3 and their supporting outhouses, using the rest of the premises, with the exception of the fenced-off area surrounding hut No. 1, to grow fruit trees and raise chickens, and as a side line to raise dogs. 4. When the police raided the place on the 15th June, 1969, in one room in hut No. 1 they found a quantity of items some of which contained traces or small amounts of opium and salts of esters of morphine, including an opium pipe, a lamp, and a fairly large amount of opium dross; in a chicken coop to the side of hut No. 1, and within the area wired off by the wire fence, the police found a tin containing a large amount of barbitone namely 45.8 grammes and a polythene bag containing a very large amount of salts of esters of morphine, namely 120.4 grammes. These dangerous drugs were the subject matter of both charges and were the only dangerous drugs found. 5. When the dangerous drugs were discovered the appellant claimed that hut No. 1 and its fenced-off area had been rented to Mrs. Wong since November, 1968, a claim that he has maintained ever since and supported by his own and other evidence at the trial which included that of his wife, daughter, and a casual worker employed by him for a time. A rent receipt, Ex. No. 33, made out in the name of Mrs. Wong, dated the 21st November, 1968, and for the period from that date to the 20th December, 1968, was found by the police in hut No. 1. The counterfoil of the receipt, and the book from which the receipt was taken, Ex. No. 35, were found in the appellant's own hut. No other receipt had been issued from the book. It may be said that when giving evidence the appellant explained this by saying that Mrs. Wong trusted him and he saved 15 cents on each revenue stamp by not issuing receipts, and the sub-letting, which he wished to conceal, was contrary to the terms of his Crown permit. The appellant was owner of a Crown land permit to occupy the rectangular area. 6. There were two lots of possibly incriminating articles found which were not found in the area of hut No. 1. The first consisted of two jerry cans of acetic anhydride, which is not a dangerous drug, but commonly used in the manufacture of heroin, and which has no other commercial use in Hong Kong, and these two cans were found buried, covered by about 2 inches of earth, a plastic sheet, and an old piece of plywood, just below a retaining wall of a path running along the side of the hill linking various structures and near a well with a tap. Inspector Sullivan of the Narcotics Bureau of the Royal Hong Kong Police Force, who was in charge of the police raid, testified that the appellant was co-operative in the police search of the area, and that the appellant was present when the two cans were uncovered and that the appellant informed him that Mr. Wong had buried the cans about two months ago and had informed him that they contained highly imflammable liquid which might explode, and that he had forgotten about them. 7. The second lot of articles was found in the appellant's store room alongside hut No. 3, which was not kept locked, and comprised firstly two brown paper bags of a chemical called sodium carbonate, commonly known as washing soda, which also, although not essential, can be used in the manufacture of heroin, and which were found under other objects in the store and secondly a bundle of small empty polythene bags. The bags were also of a size which Inspector Sullivan had once seen used for wrapping 4-ounce measures of heroin. It should be mentioned that in his evidence the appellant admitted possession of the polythene bags but maintained that the bags were used in the process of taking cuttings from his fruit trees, and a number of polythene wrapped branches were seen on the fruit trees in the rectangular area; he denied knowledge of the two bags of washing soda. 8. When the police raid took place the door of hut No. 1 was found to be not locked, and the key for the door was in the keyhole. Inspector Sullivan also stated in evidence that when the police searched the area of hut No. 1 they called the appellant there who stated "This place is let out to Mrs. Wong", and when shown the articles found there he said "These things are not mine". 9. At 18.55 hours on the 15th June, 1969, the day of the raid, the appellant was cautioned in respect of the dangerous drugs found and made the following statement:-
10. When the appellant was charged at 2.10 a.m. on the 16th June, 1969, with a charge of possession of the dangerous drugs he made this statement:-
11. This was substantially the evidence for the prosecution at the close of the case for the prosecution. No material additional evidence in support of the prosecution's case emerged in the course of the defence evidence, and the case then proceeded on the basis of the prosecution endeavouring to discredit the defence, and this was done by means of cross-examining the appellant on his antecedents statement, which he is alleged to have made when in custody and after being charged with possession of the drugs, and to which we will later refer. 12. Before this court counsel for the Crown, Mr. Astin, eventually did not seek to rely upon a presumption arising under section 47(1) of the Dangerous Drugs Ordinance in respect of the appellant's possession or control of the land upon which was found the chicken coop containing the dangerous drugs, but rather upon an inference of fact that, as owner of the land and in the circumstances of the case, he was in possession and in control of the land, and therefore in possession and control of the chicken coop standing upon the land, and, being in possession and control of the coop containing the dangerous drugs, the statutory presumption arose that he was in possession of the dangerous drugs therein and knew their nature. He also supported the finding of the trial judge that, even apart from the statutory presumption, the possession of the dangerous drugs was to be inferred as a matter of fact. 13. The questions which arise are, firstly: was there sufficient evidence for the presumption to arise; and, secondly and alternatively: was there sufficient evidence to infer a case apart from the presumption. 14. This was a case of purely circumstantial evidence, and in such a case the evidence must be such that from it a reasonable jury might draw the inference of guilt beyond a reasonable doubt. As was stated by the Judicial Committee of the Privy Council in the case of Teper v. The Queen(1)
Can that correctly be said to be the position in the present case. 15. In our view the evidence we have related, which includes the evidence upon which the prosecution relies, is at least as consistent with there being at the relevant time a tenancy of the relevant area in which the dangerous drugs were found as with there being no such tenancy, and in these circumstances we do not think that any reasonable jury could infer beyond reasonable doubt that the appellant was in possession or control of that land or of the chicken coop that stood upon it. There was therefore in our view insufficient evidence to raise the statutory presumption or otherwise to infer possession, and accordingly insufficient evidence to support the conviction, and for this reason we allowed the appeal and quashed the conviction and sentence. 16. There are however two other matters to which we would refer. The first being the matter of the antecedents statement which the appellant was alleged to have made and which was made use of at the trial in the lower court. 17. The statement in question took the form, as it usually does, of the recording by a police officer of information supplied by the appellant, in answer to questions by the police officer, as to his age, place of birth, upbringing, education and subsequent adult life. In the present case the police officer, having obtained considerable information as to the appellant's antecedents, then proceeded to question him in respect of the alleged offence the subject matter of this appeal, recording each question and answer. There was a series of such questions and answers specifically directed to the existence or identity of Mr. and Mrs. Wong and to the appellant's knowledge of their activities or suspected activities in relation to the dangerous drugs found at the premises. As we have indicated, on the conclusion of the case for the prosecution the appellant elected to give evidence denying the offence. He was then cross-examined by counsel for the prosecution. In the course of his cross-examination counsel used the statement as a means of endeavouring to discredit the appellant, that is to say by questioning him on matters to which the questions and answers in the statement related, intending thereby, if he could, to obtain answers from the appellant in the witness-box inconsistent with the answers given by him in the statement. Apart from the propriety of such a statement being adduced in evidence, there are a number of points of criticism. The cross-examination of the appellant was interrupted in order to interpose the evidence of the police officer as to the manner of the taking of the statement, for the purpose apparently of showing that it was a voluntary statement. Earlier there had been considerable confusion as to the object of introducing the statement. In fact it was not incriminating and the only purpose for which it might have been said to be available - if properly available at all - was to discredit the appellant if he could be brought to give evidence inconsistent therewith. Clearly, assuming it was proper to make use of the statement, the interruption of the appellant's evidence in cross-examination in order to interpose the police officer's evidence was a departure from the correct procedure. Where it is proposed to prove inconsistency by means of a previous statement which the witness does not admit, it should be done by adducing the statement in evidence by way of rebuttal, that is to say, in this case, after the conclusion of the case for the defence. Secondly, the statement being in no way an admission or confession, it was not necessary to prove that it was voluntary (see Chau Fai-nang v. The Queen(2)) Thirdly, it is evident, as counsel for the Crown on the appeal conceded, that some considerable detail was included in the antecedent's portion of the statement which could not possibly have been furnished by the appellant; that might well have thrown doubt on whether it was he who furnished certain detail in answer to a specific question closely concerning the existence or activities of Mr. and Mrs. Wong; further doubt on the point whether it was he who furnished that information appears in the cross-examination of the police officer regarding the information obtained by him from the appellant's daughter. These doubts do not appear to have been present to the mind of the learned judge, who relied considerably on 'inconsistencies' as between the statement and the oral evidence of the appellant in expressing complete disbelief of his evidence in his own defence. In so doing the judge stated in his judgment that the contents of the statement were admissible only 'to disprove' some of the answers given by the defendant under cross-examination. No doubt he means to 'contradict' such answers, as he had, in the course of the trial, correctly made it clear, in effect, that the contents of the statement were not to be substituted for the appellant's evidence. Fourthly, it is evident on the record that on occasions the appellant was stopped, in the course of cross-examination, from giving the complete answer he wished to give, on vital points of alleged inconsistencies. As we have said, the alleged inconsis-tencies were relied on heavily in disbelief of his defence. Fifthly, there must remain considerable doubt whether the statement was taken under caution; a matter of no significance in itself but certainly having a bearing on the credibility of the police officer recording the statement, and consequently on the value of its contents. Sixthly, the statement is criticised as being a statement recorded in English by the police officer by way of his own translation of an interview conducted between himself and the appellant in Cantonese. Counsel for the appellant, Mr. Sanguinetti, has drawn attention to Home Office Circular No.27 of 1948 in this respect (noted in Stone's Justices' Manual 1963 Ed. p.380) in which the view of the Home Office is stated as follows:-
It may also be stated that counsel for the Crown on the appeal felt unable to support the view taken by the learned judge that there was contradiction as between the appellant and his wife, who as we have said also gave evidence, on a certain point; we agree that counsel was correct in his attitude in this respect. 18. But the important matter, with respect to the statement, is whether such a statement may properly be used in evidence. At the point of time when it was taken the appellant had already been arrested and cautioned, and formally charged. Obviously, all investigative processes, so far as they might have involved interrogation of the appellant, were at an end. He was a person awaiting trial. In those circumstances interrogation of the appellant, as to the offence with which he stood charged, and with the object of rendering his answers available, if necessary, in evidence at his trial, in proof of his guilt, was clearly improper. Interrogation at that stage, with that object, is in breach of an accused person's fundamental right not to be questioned (which is sometimes called, the 'rule against self-incrimination'). This is not to imply that the police may not for their own purposes follow the usual practice of obtaining antecedents statements; we are concerned strictly with the matter of using such statements in courts of law for the purpose of proving guilt. We say 'for the purpose of proving guilt' advisedly, for there may well arise exceptional circumstances in which the police may properly question a person already charged concerning the offence with which he stands charged, such as where it is necessary to obtain information from him in the public interest or in order to clear up an ambiguity in a statement, properly admissible, which he has previously made. We put the matter on the basis of the fundamental right or rule to which we have referred, which we think is the correct basis, rather than on the basis of judicial discretion to exclude evidence unfairly obtained, which latter principle we think is a basis possibly not entirely appropriate to the circumstances in question, but if the latter principle is the correct basis then we have no doubt that the circumstances would compel judicial discretion to be exercised in only one way, namely in exclusion of the statement so obtained. It follows, in our view, that a statement so obtained should not be used for any purpose whatsoever at the trial up to the point of verdict. There is, of course, on the contrary no objection to the antecedents portion being drawn to the attention of the court in respect of sentence. 19. It follows that a major portion of the grounds for rejecting the appellant's defence rested upon an improper foundation. 20. The other matter to which we would refer concerns section 47(1) of the Dangerous Drugs Ordinance. 21. We were asked in the course of the appeal, by counsel for the appellant, to deal with the interpretation of section 47(1) of the Dangerous Drugs Ordinance (Cap. 134), in particular with the question whether, when a dangerous drug is found in or upon premises or land within the possession or control of the defendant, the case may properly be said to fall within the ambit of para. (a) of the subsection. The present Ordinance was enacted on the 17th January, 1969, and the subsection in question is similar to but not identical with the subsection in the previous Ordinance. Section 47(1) reads as follows :-
22. We do not propose to express a concluded opinion, as the appeal was allowed on other grounds, but merely to set out the arguments as they may well be of use in determining the apparent conflict in earlier cases decided on the wording of the former Dangerous Drugs Ordinance, namely Wong Sze Yun v. R.(3) and Wong Mau Ting(4). The question is not only whether premises or land may be said to be 'any thing whatsoever' but also whether they can be said to be a thing 'containing' a dangerous drug. 23. Mr. Astin, for the Crown, drew attention to the fact that the word "whatsoever" is used in paragraph (a) of the subsection, but not in paragraph (b), and he submitted that this additional word must have some meaning, and that the distinction was made so that paragraph (a) would include a place or premises; therefore paragraph (a) included everything, including a place and premises, but in paragraphs (b) and (c) - dealing with keys - containers, which are covered by paragraph (b), and places and premises, which are covered by paragraph (c), had been provided for separately; and that it would be absurd to provide for the possession of keys to premises to raise the presumption but not for the possession of premises themselves to do so, and that the object of the legislation was to cover everything including a place and premises, and that therefore the three words "possession" "custody" and "control" had been inserted in the opening words of the subsection which words were applicable to each of the three paragraphs. However he later stated that he was not pursuing the point that "anything whatsoever" included land, but submitted that the appellant was in exclusive possession of the land, on which the chicken coop containing the dangerous drugs stood, and was therefore in possession of the coop and the presumption accordingly arose. 24. Mr. Sanguinetti, counsel for the appellant, submitted that the use of the word "whatsoever" in paragraph (a) of the subsection was to cover such objects as sacks, boxes, crates and bags, which had no key, and for this reason the word "whatsoever" was not necessary, and therefore not used, in paragraph (b); the use of the word was for that purpose and not for the purpose of including premises and land. He further submitted that the word "containing", which had been used in paragraphs (a) and (b), was a word appropriate for an object containing something, but not for a place or premises. He also relied on the fact that the wording used in paragraph (c) was "in which a dangerous drug is found" which was an appropriate expression for a place or premises; that wording had not been used in paragraph (a), thereby indicating that paragraph (a) did not apply to a place or premises. 25. The point was also raised that if the word "any thing" in paragraph (b) included a place or premises, there would be no necessity for paragraph (c), but Mr. Astin had not contended that "any thing" included a place or premises, but that the words "any thing whatsoever" in paragraph (a) did so and that paragraph (b) obviously only applied to something capable of being locked with a key. 26. Further, Mr. Sanguinetti contended, the change of language from "containing" (in para. (a)) to "in which a dangerous drug is found" (in para. (c)) must be given significance, in accordance with rules of construction and with the ordinary use of language; the latter expression is entirely apt when reference is being made to a place or premises whereas the expression "containing" is apt for objects such as a box or sack; the change of mode of expression reflected the difference. Finally, he argued, any ambiguity ought to be resolved in favour of the defendant in any case involving the raising of a statutory presumption against him. 27. As we have said, it is unnecessary for us to decide the point, and we would merely observe that if on the proper construction of section 47(1)(a) the statutory presumption does not arise in the case of a defendant being in possession or control of a place or premises in or upon which a dangerous drug is found, nonetheless the circumstances may be such that an inference may be drawn that he is in possession of the drug - depending, of course, on the circumstances of each case.
17th April, 1970. Representation: Sanguinetti (T.M. Chow & Co.) for Appellant. Astin, C.C., for Respondent. (1) 1952, 2 T.L.R. 162 at 166 (2) 1966, H.K.L.R. 685 (3) 1963,H.K.L.R. 68 (4) 1967, H.K.L.R. 530 |