The Queen v. Ngai Yick-yu
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CACC000812/1983 [Conviction of applicant quashed because it was inconsistent with later, conviction of another person by another court.]
BETWEEN
Coram: Roberts, C.J., Yang and Barker, JJ.A. Date: 7th October, 1983 ----------------- JUDGMENT ----------------- Roberts, C.J. - 1. The applicant was convicted on 1st March, 1983 of possession of a dangerous drug (opium) for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance. 2. At About 5.10 a.m. on 7th September, 1982, a party of I C. A. C. a flat at Lung Kong Road, Kowloon. The. door was opened by the defendant. Also present in the flat were NGAN Mee Fung and 8 other men, among them YEUNG Sum Bor, occupied a room next to the bathroom. 3. During their search of the flat the I. C. A. C. discovered an attic above a store room. In the attic they found a warm metallic container in which was a brownish substance later identified by the Government Chemist as opium. 4. In the bathroom and other parts of the flat were found equipment which was suitable for the manufacture of prepared opium and various utensils - on which opium dross or raw opium were found. The amounts found were 689.60 grammes of prepared opium, 4.20 grammes of opium dross and 2.60 grammes of raw opium. 5. The defendant gave evidence. He denied that he knew anything about the presence of the opium in his flat; said that he had no access to the attic where the opium was found; and asserted that YEUNG Sum Bor had admitted to the I. C. A. C. officers that the opium was owned by him. YEUNG Sum Bor was not called as a witness. 6. The judge found, properly in our view, that the presumption under section 47 had arisen because the defendant was the principal tenant of the flat, including the attic and that the presumption had not been rebutted by the defendant, whose evidence he rejected. 7. We can find no fault with the long and careful judgment of the trial judge, save perhaps to comment that it is unnecessarily lengthy and detailed, consisting in the main of a full recital of the evidence. 8. Subsequently, however, YEUNG Sum Bor was charged with the same offence as NGAI Yick-yu - i.e. as having in his (YEUNG's) possession for the purpose of unlawful trafficking, the same amount of opium on the same night. 9. At his trial before a different judge, YEUNG admitted possession of the opium but argued that he was an addict and that it was intended solely for his own consumption. The judge found that YEUNG had rebutted the presumption that the drugs were in his possession for unlawful trafficking and convicted him of simple possession only; commenting that he would also have convicted him with manufacturing had he been charged with that offence. 10. Leave was sought by counsel for the applicant to put in evidence a statement made by YEUNG, explaining that he had not given evidence on behalf of NGAI because he (YEUNG) had gone to ground for about six months after the raid because he expected to be arrested in relation to the opium, and did not know, until he re-surfaced, that NGAI had been convicted of possession of the same drugs for the purpose of unlawful trafficking. 11. While it is useful for such a statement to be tendered to an Appellate Court, to indicate what evidence might be given by an additional witness whom it is sought to call and to enable that court to decide whether to permit the extra. witness to give evidence, the statement itself is not evidence and should not be taken into account, unless the other party is prepared to agree to its production in evidence as admitted facts. 12. In this instance, counsel for the Crown did not so agree, and indicated that he would want to examine YEUNG, if his evidence were to be adduced. We declined to give leave to call YEUNG, because we thought this to be unnecessary in the unusual circumstances of this matter, since the record of YEUNG's trial vas before us, with the reasons for verdict of the judge who conducted it;. although one of us had doubts as to whether we could properly refer to that record for the purposes of this application. 13. The two convictions of YEUNG and NGAI are inconsistent. YEUNG was convicted of possession of the opium and the judge accepted that he had it for his own purposes, and not for trafficking. NGAI was convicted of possession of the same opium, for trafficking. 14. If the two men had been tried together, it would have been logically impossible for one man to have been convicted of possession, for the purpose of trafficking, of opium which another man had in his possession for his own use. The conviction of YEUNG for simple possession, involving the acceptance of his evidence that the opium was for his own user must necessarily have led to the acquittal of NGAI on the charge of unlawful trafficking. 15. It was argued that, nevertheless, it would have been open to the judge to convict NGAI of simple possession on the basis that he could have been in joint possession with YEUNG. 16. It seems probable, from the presence in various parts of the flat of the implements which are of the kind used to manufacture opium, and of. its powerful odour, that NGAI knew of the presence of opium in the flat. But a person's knowledge of the presence in the premises of drugs does not of. itself impose possession in law upon that person. 17. We think that, if YEUNG's evidence is accepted, as it was by the judge at his trial, it would have been regarded as sufficient to rebut the presumption which the presence of the opium in the flat activated against NGAI. 18. We therefore do not consider that this is a proper case in which to order a retrial of NGAI, since we believe that the chances of him being reconvicted are slim. 19. His application for leave is granted and his conviction is quashed. Representation: Ian Payne (David Pyott & Co.) for Appellant K.V. Riordan, S.C.C., for Respondent. |