Yuen Yu-kin v. The Queen
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CACC000807/1979
----------------- Coram: Cons, J. Date of Judgment: 20 September 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to imprisonment of nine months. He appeals against his conviction. 2. The facts are simple. Two constables were on duty on the third floor of a resettlement estate. Only one of them gave evidence. He said that he saw the appellant squat down and take something from a cupboard between two particular flats on that floor; as the appellant walked away he was stopped by the constable and searched; a packet was found in his top pocket and which, when opened, was found to contain nine large and three small packets and two empty phials. The total weight of the mixture in the packets was subsequently found to be 2.48 grammes of which 0.85 grammes were salts of esters of morphine. The two phials contained less than 0.02 grammes of the same salts. 3. The appellant was not represented at the trial. His defence was that he had gone to one of the flats to ask a friend of his to join himself and another friend in the appellant's own flat; that he did not possess any drugs at all; and that the packet in question had been produced by the constable. He added that he had been beaten up when questioned by the police and that his mother had witnessed the beating. 4. The appellant is now represented by counsel who has raised five grounds of appeal. The first is that the learned magistrate failed to explain at the outset the presumption of unlawful trafficking, thereby prejudicing the appellant's defence. 5. There is ample authority that in a case of this kind, where the Crown relies upon the presumptions of the Dangerous Drugs Ordinance, a magistrate must explain to an unrepresented defendant the effect of those presumptions. This was acknowledged by the Court of Appeal in Reg. v. Man Wing-hing(1). As to when that explanation should be given the court said this:
6. The decision of when to explain must always be one of difficulty. The earlier it is done the more likely are the magistrate's efforts to be misinterpreted as pressure to plead to a lesser charge. If it is left too late there may be a complaint that the defendant was wrongfully allowed to commit himself to a particular line of defence inconsistent with simple possession. 7. In the present case the magistrate decided to give the explanation at the end of the prosecution case. That is said to have prejudiced the defence. I do not see for myself how that can be. The appellant had not at that stage intimated any particular line of defence. His only question in cross-examination must have related to the particular place where he was arrested. That would not have been inconsistent with a defence of possession for his own consumption. 8. The second ground of appeal is that the learned magistrate did not, or did not properly, evaluate the evidence. 9. What the magistrate said was this:
10. It is suggested that he should have gone further and commented on the evidence. I am referred to Reg. v. Yeung Chiu(2) where McMullin, J. quoted from an earlier decision of Rigby, C.J. (Reg. v. Cheng Kam-man(3)):
11. However, it does not seem to me that this authority goes as far as counsel suggests. McMullin, J. followed the quotation by saying:
12. I find nothing questionable in the evidence led in the present case. The magistrate was faced with two stories each quite plausible in its own right but in direct contradiction of the other. One at least had to be untrue. There was no other evidence of any kind which would support or even tend to support or discredit either story. I do not see what else the magistrate could have said. It was one of those situations recognized by McMullin, J. earlier in the same judgment:
13. The third ground of appeal is that the learned magistrate failed to consider or properly consider the whole of the evidence in order to determine whether the said presumption was rebutted. Three matters are put forward as evidence that might have tended to have that effect. They are (1) the smallness of the quantity of the drug; (2) the presence of the two phials; (3) the fact that the appellant was wearing pyjamas. 14. It has been accepted that the finding of normal smoking paraphernalia upon a person, together with a fairly small amount of drugs, although above the statutory limit, may indicate that the drugs were for that person's own private consumption: Reg. v. Yip Choi-hoi(4). I am not aware, however, that what were referred to as "'po chai' pill phials" are part of normal paraphernalia for smoking or any other way of consuming drugs or that pyjamas are the costume de rigueur for that purpose. That leaves only the amount of the drugs. The presumptions as to trafficking arise from the possession of five or more packets containing salts of esters of morphine regardless of the actual amount of salts therein or from the possession of half a gramme of the drug itself. In both respects the appellant was well above the limit looked at as a matter of percentages. But apart from that, although Yip Choi-hoi and other cases are authority that an amount of drug above the statutory limit, but which is not so great that it would otherwise in itself indicate trafficking, may, together with other matters, rebut the statutory presumption, I know of no authority which says that the smallness of the excess can alone be sufficient. Indeed, there could be no such authority. It would be in direct contradiction of the statute. The magistrate in the circumstances which faced him could have come to no other conclusion. 15. The words in which he chose to express that conclusion have been criticised. It is suggested that the sentence "the appellant had not rebutted the presumption" contains an implication that the defendant must adduce evidence himself and could, perhaps, induce a magistrate to overlook the possibility that the defendant may, in appropriate cases, be assisted by part of the prosecution evidence. I think there is some force in that criticism, although in the present circumstances it has no effective application. 16. The fourth ground of appeal is that the prosecution failed to produce another police officer who was present at the material time of the alleged offence and the learned magistrate failed to direct that he be called. The case of Yip Choi-hoi, to which I have already referred, is clear authority that there is no substance in a ground of appeal of this nature. 17. The fifth ground of appeal is that the appellant, being unrepresented, the learned magistrate failed to assist him in presenting his case in cross-examination, with the result that the prosecution witnesses' evidence was wholly untested and unchallenged. 18. I am referred to Reg. v. Wong Hing(5) where Trainor, J. said:
19. With respect to counsel there is nothing in the record to indicate that the learned magistrate did not in fact do as is there suggested. In my view he is not required to do more. He is bound to ensure that an unrepresented defendant has a fair trial. Subject to that it is a wise magistrate who interferes as little as possible with the course of proceedings before him. His good intentions are as likely to hinder as to help the defendant in his defence. 20. As none of the five grounds raised has been made out this appeal against conviction must be dismissed. Representation: Mr. A.A. Hoosen (Hoosen & Co.) for the Appellant. Mr. Murphy, Counsel for the Crown/Respondent. (1) 1979 H.K.L.R. 106 (2) (unreported) Crim. App. 1975 No. 1043 (3) (unreported) Crim. App. 1969 No. 426 (4) (unreported) Crim. App. 1972 No. 167 (5) (unreported) Crim. App. 1979 No. 193 |