Lau Wai-cheung v. The Queen
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CACC000779/1982 Where in a prosecution for possession of a dangerous drug for the purpose of unlawful trafficking the presumption necessarily arises under sec. 46 of the Dangerous Drugs Ordinance after a positive finding that the defendant was in possession of the drug, and there is no evidence either in the Crown case or the defence case to rebut that presumption it is not incumbent on the magistrate to state in his statement of findings that he has applied the presumption and that it has not been rebutted. However, where there is some evidence to rebut the presumption the magistrate should refer to it and give the reason or reasons why he found that it had not been discharged. Although the duties of a magistrate in connexion with his statement of findings are the same as those of a District Judge in giving his reasons for verdict (Chan King-man v. The Queen [1980] HKLR 105, and Sheih Abdul Rahman Bux & ors v. The Queen, Criminal Appeal No. 756 of 1981), there may be a danger in some cases that, in the absence of an explanation, a particular finding of fact may appear to be unreasonable. IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 779 of 1982 ______________ BETWEEN
______________ Coram: Macdougall, J. in Court Date: 19 October 1982 __________ JUDGMENT __________ 1. The appellant was convicted after a trial of having in his possession for the purpose of unlawful trafficking twenty three packets containing 2.25 grammes of a mixture of which 0.67 of a gramme was a salt of an ester of morphine. It is against that conviction that he now appeals. 2. Evidence was given by two customs officers that they were on duty on Wang Tau Hom Estate when the appellant bumped into one of them and immediately ran off. One of the officers shouted out his identity to the appellant and ordered him to stop. The appellant ignored the officer and continued to run with both officers in pursuit. During the chase, the officers saw the appellant throw a cigarette packet to the ground. 3. One of them immediately retrieved it and found that it contained 23 small packets. Subsequent analysis revealed that they contained the quantity of drugs alleged in the charge. Shortly afterwards the appellant was apprehended by both officers. 4. In cross examination the appellant's solicitor put it to each officer that the appellant had not run away from them but that they had come from behind, seized him and taken him off to some wooden huts where they searched him. It was there that one officer discovered a cigarette packet and asked the appellant if it belonged to him. The appellant denied ownership and was then assaulted by both officers who told him that he was a drug trafficker. All of these allegations were firmly denied by both officers. 5. The accused elected to give evidence and testified that he had been approached from behind by five or six persons, two of whom were the two customs officers, who searched him and on finding nothing of significance took him to a wooden but where one of the customs officers asked him where could dangerous drugs be obtained. When the appellant replied that he did not know, the officer asked him whether he consumed dangerous drugs. The appellant denied doing so. He was then dragged to a side staircase of block 21 of the estate where he was again questioned about dangerous drugs and assaulted when he denied any knowledge of them. When he was asked in cross examination about the cigarette packet the appellant claimed that the first time he had seen it was in court that day. This, of course, was in direct conflict with what his solicitor had put to the officers concerning the cigarette packet. 6. The magistrate believed the evidence given of the customs officers and convicted the appellant. 7. Mr. Aiken who appears on behalf of the appellant concedes that on the evidence before him the magistrate had been perfectly entitled to find the appellant guilty of simple possession of the drugs. Indeed, Mr. Aiken freely concedes that had the magistrate merely convicted the appellant of simple possession of the drugs he would have been unable to advance any ground of appeal. He submits however that the conviction on the more serious charge of possession for the purpose of unlawful trafficking cannot stand. 8. Mr. Aiken's process of reasoning is that since the appellant had not been seen attempting to sell or pass the drugs to any other person there was no direct evidence that he had them in his possession for the purpose of trafficking and that therefore the magistrate could only have arrived at the conclusion that the appellant had been in possession of the drugs for that purpose by the indirect route of applying the presumption under section 46 of the Dangerous Drugs Ordinance. As the magistrate did not specifically state in his findings or his judgment that he relied on that presumption there can be no certainty, says Mr. Aiken, that he directed his mind to it. 9. It is essential, Mr. Aiken submits, that where a magistrate relies upon that presumption to find a defendant guilty of the more serious offence of possession of a drug for the purpose of trafficking, he must, as a matter of law, state in his findings that he has relied on it. 10. In support of this contention he seeks to rely on a number of local authorities, the first of which is Lui Lung v. The Queen Criminal Appeal No. 316 of 1980. 11. The appellant in that case had originally been charged both with possession of a dangerous drug and with possession of equipment fit and intended for the injection of a dangerous drug. At the conclusion of the Crown case the magistrate dismissed the first charge and allowed the case to proceed on the second. He then noted in his recorded "Defendant's rights explained and also the presumptions". After hearing the defence case he convicted the appellant. 12. In his statement of findings the magistrate stated that he relied on the presumption of possession arising out of the appellant's occupation of the premises in which the equipment had been found. Power J correctly observed that no presumption may arise under the Dangerous Drugs Ordinance from a finding that a person has premises under his control in which such equipment had been found. It seems that the magistrate had confused the charge with one in which a dangerous drug is found in premises that are under the control of the defendant. If so, this may have been due to the fact that he had originally been dealing with a charge of possession of a dangerous drug as well as the possession of equipment charge. 13. In allowing the appeal on the basis that the magistrate had relied on a presumption that did not exist, Power J repeated the view that he had expressed in an earlier appeal that where a magistrate states that he has relied upon a presumption it is essential that he makes it clear which presumption it is. 14. Power J's obiter dicta relate to cases in which more than one presumption could operate and where the magistrate has referred to a presumption without stating which one he had in mind. No doubt there are cases in which confusion might easily arise as a consequence of such a failure by the magistrate. It is not difficult to imagine, for example, a case in which there is evidence on the basis of which the presumption under section 47 of possession of the dangerous drug and the presumption under section 46 of possession for the purpose of unlawful trafficking both arise. The case may be further complicated by direct evidence from which the magistrate might be entitled to conclude either that the defendant had been in simple possession of the dangerous drug or had it in his possession for the purpose of unlawful trafficking or both. There might also be evidence that the defendant had had the drug in his possession for his own personal consumption. In such a case the bare reference to an unspecified presumption is not likely to be of any assistance to an appellate court. It is clear, however, that Power J was speaking of cases in which more than one presumption could arise on the evidence, not of cases in which the evidence was capable of giving rise to one presumption only. 15. The next case that Mr. Aiken cited was Cheng Chun-fat v. The Queen, Criminal Appeal No. 545 of 1980 in which Bewley J was concerned with an appeal against a conviction of possession of a dangerous drug for the purpose of trafficking. The appellant had not called any evidence at his trial to rebut the presumption that had arisen under section 46 and the Crown submitted that in such circumstances there was no need for the magistrate to have regard to the evidence led by the prosecution in order to see whether the presumption had been rebutted. In rejecting this argument Bewley J quashed the conviction for possession for the purpose of unlawful trafficking and substituted a conviction for simple possession on the ground that the prosecution evidence pointed overwhelmingly to the conclusion that the drugs were to be consumed by the appellant and the person with whom he had been jointly charged. This case is therefore of no assistance to Mr. Aiken. 16. Finally, Mr. Aiken referred to a passage in Chu Fat-sun v. The Queen, Criminal Appeal No. 40 of 1980,where Addison J observed:
17. I am unable to see that this is of any assistance to the appellant. 18. Returning to this appeal it is plain that there was no evidence before the magistrate either on the prosecution case or that for the appellant that even remotely suggested that the appellant had the drug in his possession for any purpose other than that of unlawful trafficking. As Mr. Aiken asserts, the only basis on which the magistrate could have convicted the appellant of the more serious offence was that the presumption that arose under section 46 had not been discharged. Once the magistrate had found as a fact that the appellant had in his possession more than one half gramme of the drug or more than five packets containing it, the presumption under section 46 arose as a matter of law. Since he accepted the evidence concerning the quantity of the drug found in the appellant's possession and as there was no evidence whatever that was capable of discharging that presumption, it was not incumbent on the magistrate to state the obvious. 19. The position would have been different had there been evidence that the appellant had had the drug in his possession for his own consumption. I would then have expected the magistrate to have adverted to that evidence and to have given the reason or reasons why he found that the presumption had not been discharged. It may be that in most cases all that would be required is a simple statement by the magistrate that he did not accept the defendant's explanation. In other cases, depending on the nature of the evidence adduced, it may be necessary for him to analyse briefly his reason or reasons, and such may be so irrespective of whether the evidence tending to rebut the presumption under section 46 arose during the course of the prosecution case or that of the defence. 20. I say this because although the Court of Appeal in Sheik Abdul Rahman Bux & ors v. The Queen, Criminal Appeal No. 756 of 1981, made it clear that a magistrate's duties in giving his reasons for verdict are the same as those laid down in Chan King-man v. The Queen [1980] HKLR 105 for District Judges, there may be a danger in some cases that in the absence of an explanation a particular finding of fact may appear to be unreasonable. 21. Although there are matters, such as those mentioned by Addison J in Chu Fat-sun v. The Queen, which a magistrate should specifically make reference to in his findings or judgment, I am of the view that the matter which forms the subject of this appeal does not fall within that category. There is nothing to be achieved by requiring a magistrate to state the obvious. 22. This appeal is therefore dismissed.
Representation: Mr. Aiken, counsel assigned by D.L.A. for the Appellant Mr. Ryan, Crown Counsel for the Respondent/Crown |