Chow Kin Yuen v. The Queen

Case No.CACC 876/1979

Court

Court of Appeal

Date18 Oct 1979

Judge—

Case Document

100%

CACC000876/1979

Headnote:

Appeal against conviction for possesion of dangerous drugs for the purpose of unlawful trafficking - Certified copy of depositions inaccurate - Assumption that presumption not relied upon where reliance was not specifically indicated - Refusal by Appeal Court to act upon presumption in circumstances obtaining - Adequacy of Statement of Findings.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 876 OF 1979

-----------------

Between
	Chow Kin Yuen	Appellant
	AND
	The Queen	Respondent

-----------------

Coram: Power, J. in Court

Date of Judgment: 18 October 1979

-----------------

JUDGMENT

-----------------

1. In this matter the appellant originally appealed against his conviction of the offence of possession of dangerous drugs for the purpose of unlawful trafficking on the ground that there was no evidence or no sufficient evidence whereon to found the said conviction.

2. He, now, seeks also to rely on the following additional grounds of appeal:

"	1. It is unsafe and unsatisfactory for the learned magistrate to return a guilty verdict in view of the unsatisfactory presentation of the Crown's case.
	2. The learned magistrate erred in that having directed his mind to the possibility that the drugs could have been in joint possession he failed to consider adequately the Appellant's explanation."

3. As to the first additional ground Mr Leung, who appeared for the appellant, pointed out that there were a number of discrepancies between the evidence of the police officers and that the evidence as to the time of recording of the notes of the incident made by one of the police officers was unsatisfactory. There could be no argument as to these matters as they were evident upon the face of the record of evidence and are remarked upon by the Learned Magistrate in his Statement of Findings. They are essentially matters of fact bearing upon the weight to be given to the evidence of the prosecution witnesses and it is clear from the Statement of Findings that the Learned Magistrate bore them in mind when coming to his decision. That being so I am satisfied that there is not any substance in the first ground.

4. I turn therefore to consider the second ground. The appellant was apprehended at 12.45 p.m. on 27th April and taken to Kwun Tong Police Station. No dangerous drug was found on him but he was carrying a set of keys.

5. At 1.30 p.m. on the same day he was brought to his premises at 782 Nathan Road, 10/F., Block A. Appellant used his keys to open the main door of the premises and one of the rooms therein.

6. The police party entered the room at 1.30 p.m. and at 2.45 p.m. D.C. 16417, according to his evidence,

"	found at the window a pair of brown socks inside each sock were 3 packets inside polythene.
	Exhibit 1 - pair of socks.
	Exhibit 2 - 3 packets.
	14.45. inside drawer found one phial.
	Exhibit 3 - Phial- also 39 pink pills.
	Exhibit 4 - 39 pink pills.
	Exhibit 5 - 14 white pills - all pills inside one phial.
	Exhibit 6 - 1 phial 6 white pills and 6 red and yellow pills.
	Exhibit 7 - 1 phial containing 9 white pills and 7 read and grey pills.

	Exhibit 8 -	(a)	1 polythene bag containing suspected dangerous drugs.
		(b)	1 polythene bag containing suspected dangerous drugs."

7. P.C. 13890, who was watching the appellant during the search, said, according to the typed notes of evidence:

"	P.C. 16417 found dangerous drugs defendant on bed and I searched it found few items on pillow:-
	Exhibit 9 - 8 Empty phials.
	Exhibit 10 - 39 polythene bags 6 inches x 12 inches.
	Exhibit 11 - 105 polythene bags 2 inches x 4 inches.
	Exhibit 12 - Book on pillow hollow inside.
	Exhibit 13 - A stapler.
	Exhibit 14 - at bedside table inside drawer one syringe.
	Exhibit 15 - Defendant's identity card.
	Exhibit 16 - Card from Heng Sang Bank in defendant's name.
	Exhibit 17 - $400 cash inside drawer of bedside table."

It is hard to know exactly what the first sentence means. I have perused the Magistrate's handwritten notes but have not been assisted by them. However, it does seem that there should be a full-stop after the word "drugs".

8. As to the numbering of the exhibits the typed record is not in accordance with the handwritten notes. After Exhibit 8 all of the exhibits in the handwritten notes bear different numbers to those shown in the typed record. It is true that there is no statutory provision requiring the Magistrate himself to check the typed record against his handwritten notes. However, section 118 of the Magistrates Ordinance states that :

"(1) In the case of any appeal to which section 5 or 113 applies -

(a)

the depositions taken before the magistrate or a certified copy thereof shall, without prejudice to any other method of proof, be admissible as evidence of the evidence which was given and of the statements which were made before the magistrate, and generally that the proceedings therein recorded took place; "

"The depositions" referred to in section 118 have always in Hong Kong been considered to be the same thing as the "full minute" which the Magistrate is required to keep by section 34. In the present case the Learned Magistrate did himself certify the typewritten record as being a true copy of the depositions. As regards the exhibits it is, in fact, not a true copy as the written record contains only 18 exhibits and the certified copy contains 19 exhibits. How this came about is not clear from the notes but it may have been that "Ex. No. 8" was used twice. Whatever the reason the certified copy should not have been altered without explanation. Counsel are agreed that they do not wish to make any point as to the numbering of the exhibits and are also agreed that the opening sentence of the paragraph set out above should be punctuated in the way I have suggested. These matters are not, therefore, of significance in the outcome in this appeal. However, I feel it not inappropriate to remark that it is the duty of the person certifying the record to ensure that it is a true and exact copy of the depositions i.e. the full minute.

9. The appellant gave evidence in which he said

"	They asked me where I lived. I brought them to where I lived - I was not handcuffed. I opened door and let them in. I opened door to my room, police handcuffed me to a chair in sitting room. Then few of them went inside my room and searched. Friend CHIU Shing lived with me -3 or 4 times a week he slept there. He kept no property there only underwear. Only one bed in room.
	Police searched for one hour found nothing. One policeman went downstairs. Then after 15 minutes he brought cakes and drinks up - he put them in room then 4 of them went into room and came out with thing, but I have never seen them before.
	I told them I'd never seen them before, then they handcuffed me.
	I could not find CHIU Shing. I met CHIU Shing in prison.
	I told police CHIU Shing rented room.
	Police said they don't care about CHIU Shing.
	I have seen CHIU Shing consume drugs in room."

His defence was that the drugs did not belong to him. He appeared to be suggesting either that they belonged to Chiu Shing or that they had been planted by the police.

10. The Learned Magistrate said in his Statement of Findings:

"	It was not in dispute that the drugs were found in the appellant's room and the question I had to consider was whether they were in his possession i.e. could I be sure that he knew of them and that they formed a supply which he could draw on. The existence of Mr CHIU Sing as a lodger and the appellant's guilt were not mutually exclusive, the drugs could have been in their joint possession.
	I rejected the appellant's story of never having seen the drugs before as it seemed to me beyond belief that he could have lived in this room without knowing of the existence of the drugs.
	I was satisfied so as to be sure that the appellant had the drugs in his possession.
	I then went on to consider whether or not he had them for trafficking. Apart from the presumption there was also evidence of all the paraphernalia of a drug retail operation being found in his room. I was satisfied so as to be sure that he had the drugs for trafficking."

11. The Learned Magistrate appears to accept the possibility that Mr Chiu Shing was a lodger in the appellant's room. Certainly there is no specific finding rejecting the evidence of the appellant in this regard. What the Learned Magistrate did specifically reject was the appellant's evidence that he had never "seen the drugs before". He was satisfied that the appellant could not have lived in the room without knowing of the existence of the drugs. The Learned Magistrate then went on to state that he was sure that the appellant had the drugs in his possession.

12. The Learned Magistrate did not advert to the presumption in section 47 (1) of the Dangerous Drugs Ordinance that any person proved to have had in his possession the keys to any premises in which dangerous drugs are found shall, until the contrary is proved, be presumed to have had such drugs in his possession. In R. v. Ngan Kai-shui (1973) H.K.L.R. 161 Huggins J. when dealing with a similar situation stated at 166.

"...... it is conceded by counsel for the Crown that the judge did not rely upon the presumption in coming to his conclusion. That concession was clearly right in the light of several decisions of this Court to the effect that where a judge relies upon a presumption it is his duty so to indicate in his judgment. Where there is no such indication we must therefore assume that a judge did not rely upon any presumption which might have been available."

13. If the Learned Magistrate, in the present case, had been relying upon the presumption arising from the possession of the keys he should both have stated that he was so doing and have made a specific finding that the presumption had not been displaced by proof to the contrary.

14. The Learned Magistrate appears to have considered that he did not need to rely upon the presumption and have been satisfied upon the evidence, as it stood, that the appellant had been proved to have been in possession of the dangerous drugs.

15. The finding made by the Learned Magistrate that it was "beyond belief" that the appellant could have lived in the room without knowing of the existence of the dangerous drugs was, it was submitted, not supported by the evidence. Mr Leung relies upon the fact that the Learned Magistrate appears to have accepted the possibility that Mr Chiu Shing was a lodger in the appellant's room and points out that it was the prosecution evidence that the police had searched the room for over an hour before finding anything. If the drugs were so well concealed how, he argues, could the Court be satisfied, in circumstances where 2 persons occupied the room, that both must have known of the existence of the drugs.

16. I am aware that it is open to this Court to act upon the presumption if it considers that these circumstances warrant it even though the Learned Trial Magistrate did not. However, there being no specific findings as to the evidence which might have served to displace the presumption, particularly the evidence which sought to establish the existence of a cotenant, I am satisfied that the circumstances do not warrant it. It may, of course, be that, although the Learned Magistrate did not make any specific finding in that regard, he did, in fact, reject the appellant's evidence as to the existence of Mr Chiu Shing. Indeed it may be that the Learned Magistrate was, in fact, relying upon the presumption. I consider, given the nature of the evidence, that the proper course is that I should order that the matter be remitted to another Magistrate for a new trial. I think it appropriate to remark that I would have been assisted, in this matter, by more specific findings of fact. It is to be noted in this regard that section 114(b) does not refer simply to a "Statement of Findings". The words used therein are "a signed statement of his findings on the facts and other grounds of his decision".

17. Before leaving this matter I wish to refer to the final paragraph in the extract from the Statement of Findings set out above.

18. It is clear from that paragraph that, with regard to the element of trafficking, the Learned Magistrate had the presumption in mind. However, he does not make it clear whether or not he was relying upon it or upon the evidence as to the paraphernalia of a drug retail operation to establish that the appellant was trafficking. As I have already stated, when a presumption is relied upon this should be clearly indicated. Further there should not only be a specific finding as to the grounds which give rise to it but also a specific finding rejecting the evidence, if there was any, which was relied upon to establish the contrary. If other evidence is accepted which, of itself, is sufficient to prove the facts established by the presumption it is both proper and desirable to indicate that this evidence was accepted and to state that, quite apart from the presumption, there was sufficient evidence to prove those facts.

	(N.P. Power)
	Judge of the High Court

Representation:

F. Leung instructed by Michael Jenkins & Co. for appellant

Longley, Crown Counsel, for respondent