The Queen v. Lo Kin Kwok

CACC000117/1989

Headnote

Possession of dangerous drug - drug in a hut - no connection between accused and hut - misdirection on possession.

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Coram: Hon. Yang, C.J., Hon. Kempster, J.A. & Hon. Power, J.A.

Date of Hearing: 9 June 1989

Date of Judgment: 9 June 1989

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J U D G M E N T

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Hon. Yang, C.J.:

1. When the applicant to Kin-kwok appeared before us this morning he indicated that he would abandon his application for leave to appeal against his conviction of possession of a dangerous drug for the purpose of unlawful trafficking.

2. We were however disturbed by a passage in the Reasons for Verdict which amounted to a misdirection on possession. That passage reads:

"I find that the definition of possession in the Dangerous Drugs Ordinance covers the situation where there is no physical possession but an intention to possess coupled with an ability to reduce the article into physical possession and a knowledge of the nature of that article."

3. The facts found by the trial judge were that on the 25th October last year Lo Kin-kwok was seen approaching a hut at Wun Sha Street, Tai Hang. The dangerous drug was found inside the hut. Lo Kin-kwok denied all knowledge of the hut other than its presence in Wun Sha Street; he also denied any knowledge of what was found inside the premises or any intention to enter. The judge found that Lo Kin-kwok was at the time able to freely enter the but had he not been arrested.

4. The judge was satisfied on the facts that this case fell within the definition referred to in the passage quoted above. With respect we are unable to agree. There is no evidence to connect Lo Kin-kwok with the hut. Anyone could enter it. A petty-thief could enter, so could a curious intruder, or a friend of the occupant. There is insufficient evidence to base a finding of the possession of the hut or its contents.

5. We accordingly invited Lo Kin-kwok to withdraw his abandonment of his application, which invitation he accepted, treat the hearing of the application as hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence on the third charge of possession of a dangerous drug for the purpose of unlawful trafficking.

6. The convictions and sentences on the first and second charges are not affected.

Representation:

Applicant in person.

Mr. Lugar-Mawson for Crown/Respondent