The Queen v. Leung Shiu-how

CACC001293/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of Judgment: 22nd December 1983

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. Counsel for the Crown is unable to support the conviction.

2. The circumstances are that at the trial the Appellant offered a plea of guilty to simple possession. The learned judge was not prepared to accept that. The basis of his refusal was that he thought that, once possession was proved, then the presumption arose of possession for the purpose of trafficking, because of the quantity. What he overlooked was that it might not be possible for the Crown to prove possession, and that in fact is what has happened. Counsel for the Crown was willing to accept the plea, because no doubt he realised the difficulty that he was in. The matter proceeded to trial and the only evidence against this Appellant was that he was seen escaping from premises in which the dangerous drugs were found. The learned judge said that that was evidence that he was in control of the premises and that, therefore, he was in possession of the drugs. With respect we are unable to accept that. The only presumption which arose from the fact that he was found escaping was that he was smoking drugs in the premises: the presumption under s.47 of the Dangerous Drugs Ordinance, that he was in possession of the drugs, did not arise. That being so, there was no evidence upon which this Appellant could be convicted of possession of dangerous drugs.

3. He was prepared to plead guilty to simple possession. That plea was not accepted. The conviction must be quashed and the sentence set aside.

22nd December 1983.