Lui Sang and Another v. The Queen
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CACC000777/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.777 OF 1974 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 7th November 1974. ----------------- JUDGMENT ----------------- 1. The Appellants were both tried before the magistrate on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. They were convicted and now appeal against their conviction. The first Appellant is the principal tenant of the first floor at No. 2 Ngan Fung Street and the second Appellant is one of his sub-tenants. On 12th July a raid was carried out on those premises by members of an anti-narcotics squad. No dangerous drugs were found and the officers left. Some 45 minutes later a second raid was carried out, this time by members of the Auxiliary Police Force attached to the Emergency Unit. On the first occasion only the two Appellants had been present but on the second LAM Chuen, another sub-tenant, was also there. It is common ground that dangerous drugs were found on this occasion in the living-room and in the kitchen. All three men were arrested but LAM Chuen was subsequently released and, it appears, was not charged. 2. The Inspector in charge of the raiding party said that he spoke to the first Appellant, who replied that the white powder was not his "but bottle he said yes his. He said, 'If you arrested me, I would admit if only opium bottle'". The drugs found included a packet containing 25 grammes of opium dross, a phial containing 5 grammes of prepared opium, a small piece of prepared opium and a packet containing 0.3 gramme of a mixture containing 0.1 gramme of salts of esters of morphine. The first Appellant in the witness-box denied having made any admission concerning the bottle. The record of the evidence of the second Appellant does not make sense in places, but nowhere does it include a denial of possession of the drugs and one passage even suggests an admission of possession by him of one packet. It reads: "one packet Lui, one packet Yeung, not asked us". 3. It would appear from the submission of the solicitor who appeared on behalf of the first Appellant at the trial that the Crown were relying upon the presumptions raised by the Dangerous Drugs Ordinance. However, in his Statement of Findings the learned magistrate makes no reference to the presumptions. On the contrary, he said "I consider that the prosecution has proved the case against both Appellants beyond all reasonable doubt". Since the drugs were found in parts of the flat which were, apparently, in common use by all the occupants I do not think, with respect to the learned magistrate, that it was open to him on the evidence to find the case proved beyond all reasonable doubt unless the presumptions were relied upon, but as the learned magistrate makes no reference to the presumptions it necessarily follows that his Reasons do not deal with the possibility that the Appellants might have rebutted them. This was a case where, if the presumptions applied (as they did in view of the findings as to possession of the keys to the front door), they applied to both Appellants. In such a case there is inevitably a strong possibility that the possession of the drugs is possession by one only and there must be an express finding whether each Defendant has discharged the onus of proof which is upon him. Of course that onus may not be a heavy one. 4. From what I have said it follows that in my opinion the verdicts cannot stand. I will now hear argument as to the terms of the order which ought to be made. 7th November 1974. Representation: |