Cheung Hon Biu and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 125 OF 1973

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Coram: Leonard J. in Court

Date: 16^th March 1973

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JUDGMENT

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1.  This is an appeal against conviction.

2.  The appellants were found in a hut on a roof-top. No evidence as to who owned or occupied the hut was available nor was it shown that the appellants in this case had any key or means of affecting control over this hut. It was apparently a wooden hut of the usual small type and on the floor of the hut was found the parcel of dangerous drugs.

3.  The learned magistrate in the court below relied for proof that the appellants were in possession of the parcel on the presumption under Section 47(1)(c) of the Dangerous Drugs Ordinance, that is, the presumption that these in possession custody or control of the keys of the premises or the part of the premises in which the dangerous drugs are found are in possession of dangerous drugs found therein. No presumption of possession of premises arises from the fact that persons are found in them, the appellants were not found in possession of any keys and the learned magistrate has expressly stated in the course of his findings that if he had not been for the presumption under Section 47(1)(c) he would have acquitted. The facts giving rise to the presumption under Section 47(1)(c) must be proved by the Crown beyond reasonable doubt.

4.  As counsel for the Crown very properly conceded the evidence here did not show beyond reasonable doubt that the appellants were in possession of the keys of this hut or that they had possession custody or control of any part of it. Their story all along was that they were not in possession of the hut but that they went to the premises to buy dangerous drugs but that they were not in possession of the dangerous drugs found. In view of this express reliance of the learned magistrate on the presumption, I do not consider that this conviction can stand.

5.  The appeals of the appellants are accordingly allowed and the convictions quashed.

Appellant in person.

Mr. Duckett, S.C.C. for Crown/Respondent.