Leung Sun-wah v. The Queen

CACC000923/1976

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Coram: Morley-John, J.

Date of Judgment: 15th October, 1976.

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JUDGMENT

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The appellant was found guilty of the offence of possession of a dangerous drug for the purposes of unlawful trafficking and was sentenced to a term of twenty-one months' imprisonment. It is against this conviction and this sentence that he now appeals.

The facts of this case briefly were that the appellant was stopped and searched by a police constable on patrol and in his shirt pocket were found six packets each containing what turned out to be, upon analysis, salts of esters of morphine. The appellant, who was not represented before the learned magistrate, in his defence denied that he was ever in possession of these packets and alleged that they had been planted on him by the police constable because of a dispute they had once had at a football match.

The appellant was represented by counsel at the hearing of this appeal. The grounds of appeal put forward contained two main arguments, namely, that the learned magistrate was wrong in finding the appellant guilty of possession of the drugs at all, and, secondly, if the learned magistrate was satisfied that the appellant was in possession of the drugs then he was wrong in finding the appellant guilty of being in possession of the drugs for the purpose of unlawful trafficking.

As to the first argument it was contended:-

(1)That in accepting without hesitation the evidence of the police constable and rejecting the evidence of the appellant the learned magistrate ignored discrepancies which could not be resolved on the basis that one or other of them gave their evidence in an acceptable manner.

I cannot agree that the learned magistrate's statement of findings can be interpreted in this way. The learned magistrate stated "having observed the appellant's demeanour and listened to his evidence I had no hesitation in rejecting his allegations as unfounded". The allegation referred to by the learned magistrate was the appellant's allegation that he was the victim of a deliberate attempt by the police officer to frame him. The learned magistrate then went on to say that he accepted without hesitation the evidence of the police officer that he had found the exhibits in the pocket of the appellant's shirt at the time of his apprehension. I certainly do not interpret this as that the learned magistrate believed one side at the expense of the other.

(2)That the deep conflict between the evidence of the prosecution and the evidence of the appellant referred to on p.2 of the statement of findings could and should have been resolved by the learned magistrate exercising his discretion to recall the police officer for cross-examination by the court.

No allegation was made by the appellant in cross-examination of the police officer of the dispute at a football game. It was only when the appellant was giving evidence in his own defence that he mentioned the fact that he and the police officer who arrested him had a football game in the past and at that game they had a dispute and he then alleged that the officer arrested him because of that dispute. In his statement of findings the learned magistrate has said that he had no hesitation in rejecting these allegations made by the appellant, and therefore I see no reason why the learned magistrate should recall a witness to question him about something which he did not believe had ever happened.

(3)The appellant's evidence that he and the police officer knew each other and had a previous dispute at a football game was pertinent and relevant to the appellant's allegation that he was falsely accused, and if true, must raise a reasonable doubt as to the credibility of the police officer's evidence. As I have already stated above the learned magistrate, as a matter of fact, did not find any truth in the appellant's allegations.

Therefore I am perfectly satisfied that the learned magistrate was correct in coming to his decision that on his arrest the appellant was found to be in possession of the six packets of dangerous drugs.

As to the argument that the learned magistrate if satisfied that the appellant was in possession of drugs he should not have found the appellant guilty of being in possession for the purpose of unlawful trafficking, it was contended on behalf of the appellant that the learned magistrate erred in law in holding that only the appellant could rebut the presumption of trafficking in dangerous drugs and that having accepted the evidence of the police officer as to the arrest of the appellant there was evidence before the court to find the appellant was in possession of dangerous drugs for his consumption only and this evidence was supported by the small quantity of heroin involved. The law at present is quite clear that once the Crown have proved to a magistrate beyond reasonable doubt that an accused person was in possession of more than five packets containing a salt of an ester of morphine then a presumption arises that the accused had these drugs in his possession for the purposes of trafficking therein and the onus then shifts to the accused person to prove on the balance of probability that he did not have those drugs in his possession for the purposes of trafficking therein.

Counsel for the appellant contended that the learned magistrate should have considered the evidence of the police officer which he apparently accepted that upon his arrest and later at the police station the appellant stated that he had bought these drugs for his own consumption as evidence to rebut the presumption that the accused was in poss ssion of the drugs for the purposes of unlawful trafficking. However, as I have stated, it is for the appellant in this case to rebut this presumption. It was open to the appellant on the question of presumptions to adopt the evidence of the police constable that he had said that he had the drugs for his own consumption. In fact, from the record there is no mention that any reference was ever made to any statutory presumptions. In his statement of findings the learned magistrate said that had the appellant stated that he had the articles in his possession for his own consumption he would have believed him bearing in mind the small quantity of heroin involved. The learned magistrate continued that however the appellant denied being in possession of these articles and therefore there was no question of his rebutting the presumption and the learned magistrate therefore treated the appellant when he came to sentence him as a trafficker. As to the quantity of heroin involved, 0.1 gramme, spread over the contents of six packets, in support of the contention that the very small quantity of heroin involved could also be considered as evidence that the appellant had these drugs in his possession for his own consumption. Counsel called my attention to a passage from the judgment of Huggins, J., as he then was, in the case of CHENG Gee v. Reg.⁽¹⁾ when the learned judge stated that there must come a time when the quantity of drugs found in a defendant's possession is such that the only purpose he can have them for must be trafficking, but in the case in question the quantity was, in the learned judge's view, nothing approaching that amount.

It is ironical in this case that if instead of being contained in six separate packets the drugs found on the appellant had all been in one packet no presumption would have arisen. The presumption arose because the appellant had more than five packets in his possession, in fact he had six, although the total amount of drugs in the mixture contained in the packets only amounted to 0.1 gramme whereas if all the drugs had been in one packet the amount of salts of esters of morphine in the mixture would have had to have been 0.5 gramme before the presumption could arise. Be that as it may, as the learned magistrate has stated, the appellant in no way attempted to rebut the presumption. However, the learned magistrate did not explain fully and carefully to the appellant the nature and effect of the statutory presumption. In fact, as I have already said, according to the record the question of presumption was never mentioned. Again quoting from the judgment of Huggins, J. in the case of CHENG Gee it would have been difficult for the appellant to swear that the drugs were planted on him and at the same time to say that if he was in possession unlawfully he had them for his own consumption. Nevertheless the appellant was not warned that the possibility that the presumption would result in his conviction, and had he been warned he might have put his case differently.

Counsel for the Crown called my attention to the judgment of Rigby, C.J. in the case of YIP Choi-hoi v. Reg.⁽²⁾ in which the learned Chief Justice said:

"When an accused person is unrepresented it is in my view equally necessary that the magistrate should explain to the accused the type and quality of evidence which, if believed, is capable of rubutting that presumption. In my judgment it is not only necessary in the interest of justice that such an explanation should be given to the accused but also that the record of the magistrate should state clearly that this has been so given to him. In this case there is certainly nothing on the record to show that the nature and effect of the presumption was at any time explained to the appellant. On the other hand, having regard to the nature of the defence raised, a total denial of the possession of the drugs, I am satisfied that this apparent failure of the magistrate to explain the nature of the effect of the statutory presumption has not resulted in any injustice to the appellant in this case."

It is that last sentence upon which the Crown are relying. However, further on in his judgment the learned Chief Justice is recorded as saying the following:

"But quite apart from the defence and, perhaps, an obviously untruthful defence, which the accused person puts forward when totally denying possession there may be factors as in the present case, inherent in, and disclosed by, the evidence given by the prosecution itself which raised the possibility, or even a probability, that the accused was in fact in possession of the drugs for his own use."

The learned Chief Justice concluded by allowing the appeal against conviction of unlawful trafficking and he varied the conviction to one of simple possession of dangerous drugs.

In this present case I am satisfied that if the learned magistrate had explained the nature and effect of the statutory presumption the appellant may well have put his case differently. The learned magistrate, as I have already said, stated that if the appellant had stated that he had the articles in his possession for his own consumption he would have believed him bearing in mind the small quantity of the heroin involved.

I am satisfied that this conviction cannot stand as things are and in all the circumstances I think the proper course is to allow the appeal against conviction of being in possession of a dangerous drug for the purpose of trafficking therein and substitute a conviction for unlawful possession of the dangerous drugs simpliciter. This being so I consider that the sentence of twenty-one months' imprisonment is excessive and I allow the appeal against sentence to the extent that a sentence of five months be substituted for the original sentence of twenty-one months.

Representation:

Miss J.J. McGrowther, assigned by (Director of Legal Aid) for the appellant.

Mr. R.W. Stanbury for the Crown/respondent.

(1) Cr. App. No. 432 of 1976

(2) Cr. App. No. 167 of 1972