Ying Kan Sang v. The Queen
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CACC000818/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 818 OF 1969 -----------------
Coram: Huggins, J. Date of Judgment: 9 January 1970 ----------------- JUDGMENT ----------------- Huggins,J: 1. The appellant was the first of three defendants jointly charged with possession of dangerous drugs for the purpose of unlawful trafficking. The first, second and third defendants were respectively husband, wife and their 22 year old son. The son pleaded guilty to the charge but the parents pleaded not guilty. The evidence was that a police party raided the flat in which the family lived and found therein a wooden box containing a tin, which in turn was found to contain a substantial quantity of dangerous drugs. The appellant denied possession of the drugs and the second defendant said she knew nothing about them because they were not hers. 2. In his evidence the appellant said he was not aware of the presence of the drugs "when they were found by the police": his son did not tell him that there were dangerous drugs at home. In cross-examination he agreed that the wooden box belonged to him but said that he did not know there was a tin inside it. He admitted knowing that there were dangerous drugs in the box because, he said, his son had admitted to him that the tin containing dangerous drugs belonged to him. He did not, however, say when this conversation took place, although the learned magistrate appears to have assumed that it was before the police raid. In her evidence the wife said she knew nothing about the case and that she did not know there were dangerous drugs in the house. 3. The learned magistrate decided that there was some doubt whether the wife had knowledge of the dangerous drugs and he acquitted her. As to the appellant the learned magistrate said:
As to the suggested inconsistency in the evidence of the appellant I have already pointed out that there is nothing in the note of evidence to show when the son told the appellant about the drugs. The learned magistrate appears to have relied upon the suggested inconsistency as justification for disbelieving the appellant's evidence that he was not in possession. 4. The learned magistrate relied upon the appellant's occupation of the premises and his admission of ownership of the tin containing the drugs as raising a presumption that he was in possession of the dangerous drugs. He did not indicate how he thought this presumption arose and I hope I am not doing him an injustice when I assume it was under s.47(1)(a) of the Dangerous Drugs Ordinance, there being no evidence of the appellant's having possession, custody or control of any key. Yet there was no evidence of his possession, custody or control of the tin box or of the wooden box, although he admitted ownership of them. I say that he admitted ownership of the tin because in cross-examination he said "it belongs to the family", but in cross-examination he also said the son admitted the tin belonged to him (the son). If one assumes that the learned magistrate accepted the first version one still does not have a clear finding that the tin was in the possession of the appellant. In my view no presumption arose as to the possession of the drugs and there was, apart from any statutory presumption, no evidence to support a finding that the appellant was in possession. 5. If the learned magistrate was right in saying the appellant did contradict himself, and if he had been right in assuming that the appellant's ownership of the wooden box included custody or control of that box, I think he would have been justified in reaching the conclusion which he did had he not gone on to make the assumption contained in the latter part of the passage cited above. There the learned magistrate assumed that the dangerous drugs belonged to the son, without suggesting that possession had been vested in the appellant. As I read the judgment the reason for making the assumption was that the learned magistrate was suggesting that, even if he was wrong in finding the appellant to be in possession himself, he could nevertheless be convicted as an aider and abettor. That would seem to me to indicate some doubt in his mind whether in fact the appellant was guilty of possession. 6. The finding that the appellant was - if not himself in possession - aiding and abetting the possession of the son involved two separate elements which are open to attack. First, there was no finding that the son was in possession of the drugs: the learned magistrate merely assumed, for the purposes of his judgment, "that the said dangerous drugs belonged to (the) son". One cannot say that if the appellant was not proved beyond all reasonable doubt to be in possession of the drugs the son must have been in possession. The second element was a finding that the appellant had actual knowledge of the presence of the drugs in his home. As already indicated I do not think the evidence on the record justified a finding that he had actual knowledge at the material time. Even if that finding were justified I cannot accept that mere knowledge of the presence of the drugs, even in the circumstances which obtained, made the appellant an aider or abettor. The son is of full age and the only control which might be exercisable by the appellant over his son would be as the person entitled to possession of the premises. Here again there was no finding: the learned magistrate stated merely that the appellant "was the occupier of the premises". There was no evidence which indicated that his occupation of the premises differed in any respect from that of the other accused and it is not certain that in law the appellant had the right to evict the son. Unless such a right of eviction existed I cannot see that the appellant was particeps criminis: mere presence at the scene of a crime does not necessarily indicate concert with the wrong doer. 7. When the learned magistrate held the appellant to be "guilty as charged on either of the two aforesaid grounds", i.e. either as a principal or as an aider or abettor, he would appear to have meant not that the appellant was guilty on both grounds (which would clearly be inconsistent) but that if he was not guilty on the one he was guilty on the other. For the reasons I have given it seems to me that quite apart from any inconsistency in this statement of alternative bases for the verdict each basis was itself incapable of alternative bases for the verdict each basis was itself incapable of supporting the verdict and the conviction must be quashed. I have considered whether the case should be remitted for a new trial but in all the circumstances I have come to the conclusion that such a course would not be justified. 9th January, 1970. Representation: Appellant in person Penlington for the Respondent |