Chow Choi-nam v. The Queen

Case No.CACC 952/1981

Court

Court of Appeal

Date01 Dec 1981

Judge—

Case Document

100%

CACC000952/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 952 OF 1981

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BETWEEN
	CHOW CHOI-NAM	Appellant
	and
	THE QUEEN	Respondent

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Coram: Jones, J. in Court

Date of Judgment: 1st December, 1981.

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JUDGMENT

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1. On the 29th September 1981 the appellant was convicted of a charge of possession of dangerous drugs for the purpose of unlawful trafficking contrary to Section 7(1) of the Dangerous Drugs Ordinance. A sentence of fifteen months imprisonment was imposed. The appellant appeals against his conviction.

2. The facts show that on the 4th April 1981 the appellant was stopped by a party of police in the shopping centre at Pak Tin where he was searched. Nothing suspicious was found. However, he was subsequently taken to the Police Neighbourhood Unit where a further search was carried out. Here a packet containing six small packets of suspected dangerous drugs was found.

3. Upon analysis by the Government Chemist the small packets were found to contain a mixture of 0.88 grammes with a total weight of 0.27 grammes of salts of esters of morphine.

4. The first ground of appeal was that the learned magistrate allowed inadmissible evidence to be adduced by PW1 P.C. 19306 at the trial which was highly prejudicial and must have exercised considerable influence upon him in reaching his decision. This evidence was to the effect that the Police had been informed that a Chinese male, whose name and description had been supplied to them, was selling drugs in the area. The Crown conceded that this evidence was inadmissible and highly prejudicial, but did not agree that it would have exercised considerable influence upon the mind of the learned magistrate. In Chan Wai Shun v. The Queen⁽¹⁾ which was cited by Mr. Chung who appeared for the appellant, Trainor J. made the following observation:-

'I think it is to be deplored that the evidence of police witnesses should be prefaced by remarks as "a result of the information received", or such remarks as were made in this case. Almost invariably such observations are succeeded by a description of something that took place which led to the arrest of the accused. Such observations, in my opinion, inevitably suggest that the police officer or officers know something about the accused which is not going to be revealed to the court. They are, perhaps, excusable when the court is composed of the magistrate alone and he will probably exclude them from his mind when he is considering his ultimate decision. Nevertheless, there is always the possibility that, even sub-consciously, they may influence him. It is much more damaging if the remark is made in the presence of a jury.'

5. The learned magistrate based his decision upon his acceptance of the Crown witnesses that the dangerous drugs were found on the appellant which raised the presumption under Section 46(c) of the Dangerous Drugs Ordinance. He disbelieved the appellant's evidence in denial that he had been framed. I do not consider that the magistrate was influenced by the inadmissible evidence in coming to his decision. Accordingly this ground of appeal fails.

6. The second ground was that the learned magistrate failed to consider that even though the appellant's defence was a total denial of possession of the dangerous drugs the prosecution case raised a possibility or probability that the drugs were for the appellant's own use in that:-

	(i)	there was no evidence or evidence to suggest that the Appellant approached persons to whom he could have sold or given the drugs.
	(ii)	when the Appellant was cautioned by P.W.1 he said that the drugs were for his own consumption and not for the purpose of trafficking.

7. In support of his argument Mr. Chung cited Yip Choi-hoi v. The Queen⁽²⁾ where the appellant was found with thirteen packets of suspected dangerous drugs in his possession and paraphernalia commonly associated with drug addiction. The appellant in that case denied that he was in possession of the dangerous drugs. He was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, but on appeal the conviction was varied to one of simple possession. In coming to his decision Sir Ivo Rigby, the learned Chief Justice, referred to the absence of any evidence that anyone had approached the appellant to whom he could have sold or distributed drugs whilst the possession of the paraphernalia was described as almost the hallmark of a drug addict. It was further emphasised that the appellant was not represented at the trial.

8. Whilst it is clear that a magistrate is required to consider possible excuses in law whether raised by the prosecution or the defence the appellant's case was that he was framed. This defence was rejected so that the presumption arose. Apart from P.W.1's evidence that the appellant's answer in reply to caution was that the drugs were for his own consumption there was no other evidence to rebut the presumption.

9. In this case no paraphernalia was found on the appellant nor was there any tangible evidence to show that he was a drug addict. A mere assertion made by the appellant unsupported by his own testimony would defeat the whole purpose of the legislation. This case can also be distinguished from that of Yip Choi-hoi⁽²⁾ as the appellant was represented at the trial.

10. Having regard to the evidence that was adduced it would have been unrealistic for the learned magistrate to consider the possibility or probability that the drugs were for the appellant's own consumption.

11. In my opinion the learned magistrate's approach to the evidence was correct.

12. The appeal against conviction will therefore be dismissed.

	(B.L. Jones)
	Judge of the High Court

Representation:

Mr. E. Chung instructed by D.L.A. for Appellant.

Miss Plumptre, Crown Counsel, for Respondent.

(1) Criminal Appeal 255/1978

(2) Criminal Appeal 167/1972