Lai Chiu v. The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 805 OF 1972

(ON APPEAL FROM THE DISTRICT COURT OF HONG KONG)

(HOLDEN AT KOWLOON)

________________________

________________________

________________________

JUDGMENT

________________________

1.  The appellant was convicted in the District Court (Addison D.J.) of the offence of being in possession of nearly six thousand grammes of prepared opium and over three hundred grammes of opium dross for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drugs Ordinance (Chapter 134).

2.  The facts are simple. On August 8th 1972 a party of Preventive Service Officers raided a certain hut at Kowloon Tsai. This hut is divided into two unequal portions by a partition in which there is a doorway. It has only one entrance from outside which opens into the larger portion of the interior. In that portion there was a bed. The smaller portion of the interior is to the right as you enter the hut.

3.  In the course of their search, the Preventive Service Officers kicked open the outer door of the hut. Their evidence was that inside they found the appellant standing in the smaller portion of the interior near to a Mahjong table, on which rested the opium which was packed in polythene bags and a phial. The prosecution’s case was that the evidence showed that the appellant had “in his possession or custody or under his control the part of the premises in which the dangerous drug, the opium, was found.” And they relied on the presumption contained in Section 47(1) of the Ordinance. They also relied on the presumption contained in Section 46 of the Ordinance as to the amount of the opium found in order to prove that the drug was in the possession of the appellant for the purposes of trafficking.

4.  The appellant gave evidence on his own behalf. His case was that when the Preventive Service Officers came to the hut he was on the bed in the larger portion of the interior of the hut and not near the table on which the drug was stacked in the smaller portion of the interior as was stated by the officers.

5.  He said that on the previous night he had been smoking opium in the hut with a friend, named Li Hung, who was the owner of the hut. As it was raining he stayed the night on the bed in the hut. Li Hung removed himself to another hut nearby.

6.  The appellant said that the opium was not his. The Preventive Officers also raided the hut of Li Hung and arrested him. According to the appellant Li Hung admitted to the officers that the opium was his and not the property of the appellant.

7.  The District Court Judge accepted the evidence of the prosecution witnesses and disbelieved the evidence of the appellant and convicted.

8.  Various grounds of appeal were put forward but we only intend to deal with two, the first and the last, which can be conveniently considered together. What they amount to is that the conviction was against the weight of the evidence: that there was insufficient evidence of facts so as to raise the presumption.

9.  During the course of his most careful ‘reasons for judgment’, the learned Trial Judge said:

“Having regard to the definition of possession within Section 2(2) of Cap 134, I am perfectly satisfied that there can be no deeming of possession on the evidence given in this case by the Defendant” – the Appellant.

10.  Later, the judge went on to say this in reference to the testimony of the Appellant:–

“Had he admitted being in that cubicle, the Crown would still have to prove possession, custody or control by him of the opium. What he would have said is a matter of conjecture and it is not for me to speculate. He did, however, and to my entire satisfaction, lie about his position in the premises and I am entitled to ask why he should have done so. I am not obliged to convict him because he lied. On the other hand, a lie can give an entirely different conception to a proven state of affairs or settled facts. If a jury were impanelled, no doubt the judge would tell them he may be convicted. It would be a matter for them but first they would need to be firmly convinced the lie actuated from guilty participation – in this case possessory rights in and over the drugs.”

11.  The “cubicle” referred to is the smaller portion of the interior of the hut.

12.  The passages quoted above occur after a careful analysis of the evidence of the appellant.

13.  Counsel for the appellant pointed out that there was no evidence that when he was found the appellant was physically exercising any control over the drug: nor that he had previously packed or stacked the drug on the table on which it was found or indeed that he had done anything to the drug at all. He urged that insufficient weight had been given to the fact that the premises were small and to the appellant’s statement that the drug belonged to Li Hung who had admitted that fact. He suggested that the judge had applied the presumption upon insufficient evidence.

14.  With that we cannot agree. The judge examined the evidence of the appellant with great care. He accepted the story of the prosecution that he was in the smaller portion of the premises near the table on which the drug was placed and was not near the bed in the other part of the premises. He accepted that the appellant lied as to his position. In addition Li Hung was not called as a witness though the appellant was given an opportunity to do so. We think that the judge drew the only inference that it was possible to draw from the facts and rightly applied the presumption.

15.  Counsel for the appellant raised another doubt. The prosecution case depended upon the evidence given by two officers of the Preventive Service, who assisted in carrying out the raid. The Trial Judge said that he considered that the evidence of one of them was unsatisfactory. He made it clear however that he, the judge, did not think that his evidence was prejured or maliciously given, only that it was ‘selective’. It was suggested that in the circumstances the conviction was unsafe. However a second Preventive Officer also gave evidence and his evidence covered the whole ground dealt with by the first officer. The Trial Judge accepted the evidence of the second officer as being true and reliable in its entirety. So there is no merit in this point.

16.  The appeal is dismissed.

27th April, 1973.

Eddis (Samuel Soo & Co.) for Appellant.

Stephenson, C.C., for Respondent.