Ko Man Yat v. The Queen
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CACC000762/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 762 OF 1974 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 25th September 1974. ----------------- JUDGMENT ----------------- 1. The Appellant pleaded Not guilty to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The police gave evidence of having raided some premises. When they arrived they found that the entrance was barred by an iron grille. At first no one came to the door when they rang the bell and they were about to force an entry when the Appellant appeared. One detective constable said that he revealed his identity and asked that the door be opened. The note then reads:
(I think that last word should probably read "opened".) There was no further evidence as to the obtaining of entry into the premises and it is not very clear from what the constable drew his conclusion that the Appellant was trying to shut the wooden door. The Appellant's expl nation of the delay was that he was in the toilet obeying a call of nature. 2. It is common ground that the Appellant was the principal tenant of these premises but that there were two other occupants, who were not before ...(illegible) court and have not been found. A very thorough search was made of the premises and in a drawer were found what proved to be dangerous drugs. The Appellant was questioned about them but did not answer. Several parts of the record are difficult to understand but there appear also to have been some phials containing traces of dangerous drugs found in another part of the premises. 3. The learned magistrate found it proved beyond reasonable doubt that the Appellant was in possession of these drugs for the purpose of unlawful trafficking. I have reluctantly come to the conclusion that there was no evidence upon which he could come to that conclusion. There was not even evidence which justified a finding that this Appellant was in possession of the drugs rather than that one of the other occupants of the premises was in possession. Although the magistrate did not do so, this was obviously a case where the prosecution were relying upon the presumptions in the Dangerous Drugs Ordinance. However, there was no evidence as to which of the three occupants was in possession of any particular part of the premises: the Appellant was said to be a "principal tenant" and therefore it would appear that the other occupants were in possession of some part of the premises. 4. In all the circumstances, in my view, this conviction cannot stand. It may well be that the Appellant is a lucky man. The appeal is allowed, the conviction quashed and the sentence set aside. The fine of $1,000, if it has been paid, must be repaid. 25th September 1974. Representation: |