The Queen v. Ting Wing Ming

CACC000901/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P. , Li & Silke, JJ.A.

Date: 18th November 1983

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JUDGMENT

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Silke, J A. :

1. The applicant seeks leave to appeal against his conviction of the offence of being in possession of dangerous drugs for the purpose of unlawful trafficking.

2. It is also necessary for him, for reasons which we accept, to apply for leave to make that application out of time.  There were grounds for that application and, there being no objection raised to it by Miss Cheung, who appeared for Crown, it was granted.

3. On the 3rd Yecgy6lyce party raided December 1981 Room 1115, Block B, Telford Gardens. When they arrived there there were two persons, husband and wife, on the premises. Drugs were found in their possession and they were subsequently of possession of dangerous drugs. They were on the charge sheet D1 and D2 -  though the applicant was tried separately.

4. They shared one portion of Room 1115. Another room in that premises was occupied by a young lady who was a night club hostess. The applicant was a constant visitor there. He had keys which allowed him to enter the room as he wished.

5. The police party, having searched that portion of the premises relating to D1 and D2, broke down the door of the young lady's room. They gave it in evidence that this was all they did. They did not conduct a search of that room at that time. The original entry had been at about 10:20 a.m. The police party remained in the premises until 2:50 p.m. - a considerable period - at which time the applicant arrived at the premises.

6. It was the evidence of members of the police party that the applicant, having been brought to the room of the girl, said to the police that he would "save them the trouble of finding" because they would find the drugs anyway.

7. The police evidence in relation to that verbal admission was most unsatisfactory and the Judge, very rightly, rejected it.  But the police evidence continued that, immediately following upon this rejected verbal, the applicant went to a stool at the dressing table in the room and took from it packets containing drugs handing these to the police.

8. This aspect of the applicant's taking the drugs from the stool was not specifically dealt with by the trial judge though be had said that he had "the gravest of doubts" as to the making of the verbal admission.  He further considered the verbal admission not to be supported by other evidence.

9. It seems to us that if he rejected the verbal admission he must inevitably have rejected the evidence of the taking the drugs from the stool by the applicant, which rejection, while we accept that the keys in the possession of the applicant raised the presumption, would go a long way towards the rebutting of the presumption.

10. It was the defendant's case throughout that he had no knowledge of the presence of the drugs. It is right to say that if you do not know of something being there you cannot possess it in the sense of possession in the Dangerous Drugs Ordinance. Further, the Judge himself seemed in some doubt as to who owned the drugs for he said this:

"The drugs may have been the girl's, or they may have been the girl's and the defendant's but there is no evidence reasonably leading me to the belief that the drugs did not belong at least partly to the defendant.''

11. We are of the view that this placed too great a burden upon the defendant in he course of the rebuttal of a presumption. There was, of course, the further evidence given by a witness called by the defendant, who was the convicted drug possessor Dl, to the effect that other men came to the premises to see this young lady.

12. The Judge also commented upon the fact that the defendant would be expected to have said to the police upon arrest that he was not the owner of the drugs or possessor of the drugs if this were so.

13. We think that the rejection of one portion of the police evidence and the apparent acceptance of the other portion makes this conviction on its face unsafe and unsatisfactory. The evidence given by the defendant was evidence which might- we put it no higher than that - be true. We think that the Judge placed too great a burden upon the defendant in the rebutting of the presumption and that he took too strong a view of the lack of evidence capable of rebutting.  The way in which he did express his findings gives us reason to doubt his satisfaction beyond reasonable doubt of the prosecution's case.

14. In the event we do not think this conviction can stand. The application is granted, the appeal allowed, conviction quashed and sentence set aside.

Representation:

Applicant in person.

Miss Ida Cheung for Crown/Respondent.