Yiu Shing v. The Queen
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CACC000753/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 753 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 14th December, 1972. ----------------- JUDGMENT ----------------- 1. This is about as hopeless an appeal as one could expect to meet with. The Appellant was one of nineteen persons charged as a result of a raid on a suspected opium divan. The Appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking and was convicted after a trial. He appeals against conviction. The other Defendants were charged with smoking in a divan and one of them with keeping the divan, but we are not concerned with any of them. 2. The evidence was that a party of officers from the Preventive Service went to premises in Woosung Street, 5th floor. When somebody (apparently not in the party) rang the bell of the flat, the door was opened and the party then took the opportunity to rush in. There were several people in the flat but there was a cubicle, the door of which was closed. One of the officers opened the door and, inside the cubicle, saw the Appellant. He was dripping prepared opium from a tin into a small pot. That much was admitted at the trial. In the cubicle was a large number of pots and the evidence of the officer was that:
3. The Appellant's defence at the trial was that he was there as a customer of the divan. He said that he had had what he described as "two puffs" and then had run out of opium. He said that the owner of the divan was a friend of his and gave him permission to go and obtain his own opium from this cubicle. His story was, therefore, that he was obtaining two pots of opium for his own use, although he subsequently said that one was for his own use and one for one LO Yam. LO Yam also gave evidence for the defence. He claimed to be operating this divan and his story was that the Appellant asked him for "several other small pots, six to seven, to smoke". LO Yam said that the drugs were his, although, again, he subsequently said that he had been engaged to look after the divan, being paid a sum of $25 a day. 4. The story told by the Appellant in this Court has been very different. He now says that he was a foki of the divan and that he was employed in addition to LO Yam. He says that LO Yam was paid not $25 but $35 a day and that he himself was paid $17.50. He says that he used to be an opium smoker but has given up his addiction, which, of course, is directly contrary to the story he told to the learned magistrate when he said he was there to smoke. 5. If the story told by the Appellant in this Court is true, then clearly he confesses to having been in possession of drugs for the purpose of unlawful trafficking, for it means that he and LO Yam were in joint possession, having control of this divan. However, I am concerned with the evidence which was given in the court below and in my view there was ample evidence to justify a conviction. I should have added that the Appellant made a statement to the police and gave his address as the address at which the divan was being operated. The address that he gave in his evidence was different. Be that as it may, in my view the learned magistrate had very good reason for disbelieving the evidence of the Appellant. If LO Yam had, indeed, told him that he could get his own opium, there were no less than 57 pots of opium in that room and it was not necessary for him to drip opium through the apparatus into the pot he was seen to be filling. The story he told was inherently improbable and it was open to the learned magistrate to believe the evidence for the prosecution. 6. The only matter which is open to comment is that the first Accused, who gave evidence on behalf of this Appellant, was questioned about a statement which he gave to the police in which he said that he was the keeper of the divan. He said in evidence that the statement was not true. The learned magistrate said "I believed the statement, and not the evidence". With respect, he should not have believed the statement: it was not admissible as evidence of the truth of what was said but merely of the fact that he had made a previous contradictory statement and was relevant only to the credibility of the witness. However, this is a small point and in my view it is not fatal to the conviction. The evidence was amply sufficient to support the conviction. What the Appellant has told me today merely goes to confirm that the magistrate was clearly right in disbelieving the Appellant's story. 7. The appeal is dismissed. 14th December, 1972. Representation: |