Chan King-man and Others v. The Queen
Read the full judgment text of CACC 131/1979 on BabelCite. This Court of Appeal judgment was delivered on 26 February 1980 before Roberts, C.J., McMullin, J.A. and Leonard, J..
Criminal law – Dangerous Drugs Ordinance – possession for the purpose of unlawful trafficking – presumptions under sections 46, 47(1) and 47(3) of the Dangerous Drugs Ordinance – possession of a key to the premises giving rise to the statutory presumption of possession – Crown to prove foundational facts beyond reasonable doubt – defendant to rebut presumption on balance of probabilities – what suffices to rebut the presumption – innocent possession of a key not enough; possession of the drugs must be rebutted – silence carries grave risk where presumption operates – appeal against conviction – five defendants at flat where drugs and mixing/packaging equipment found – D1 the tenant and ring-leader convicted of separate car charge – D2 acquitted at close of trial – D3 a frequent visitor and close friend of D1 in possession of a key who did not give evidence – D4 the mistress of D1 in possession of a key with the run of the flat – D5 a 16¾-year-old female sub-tenant of Room B with a key, found in pyjamas on the sofa when police entered – whether each of D3, D4 and D5 rebutted the presumption on the totality of the evidence – whether D5's conviction was unsafe – obligation of District Judge under section 80 of the District Court Ordinance to record a short statement of reasons for the verdict – whether a District Judge must set out his full mental processes, the whole of the law, and a review of the whole of the evidence – whether a District Judge must explain why a defendant's evidence is disbelieved – appeal of D3 against conviction dismissed – appeal of D4 against conviction and sentence dismissed – leave to appeal granted to D5 and her conviction quashed on the ground of uneasiness as to its safety – Full Court decisions in LAM Tin-chung v. R. (1970) HKLR 105 and R. v. R.E. Low (1961) HKLR 13 followed in preference to obiter remarks in LAW KEUNG v. R. Crim. App. 625/72 – minor misdirection in trial judge's formulation of the presumption treated as immaterial.
Legal issues: D3 – Rebuttal of presumption of possession under ss.46 and 47 Dangerous Drugs Ordinance · D4 – Rebuttal of presumption of possession under ss.46 and 47 Dangerous Drugs Ordinance · D5 – Whether the conviction was unsafe and ought to be quashed · Obligation of a District Judge under s.80 of the District Court Ordinance
Outcome: Appeal of D3 (CHAN King-man) against conviction dismissed; appeal of D4 (CHOW Ka-suen) against conviction and sentence dismissed; leave to appeal against conviction and sentence granted to D5 (SHUM Yee-ling) and conviction quashed.
Cited by 16 cases
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CACC000131/1979
Coram: Roberts, C.J., McMullin, J.A. and Leonard, J. Date of Judgment: 26 February 1980 ----------------- JUDGMENT ----------------- Roberts, C.J. : Preliminary 1. WONG Siu-fan (D1), NG Hon-kit (D2), CHAN King-man (D3), CHOW Ka-suen (D4) and SHUM Yee-ling (D5) were charged with possession for the purpose of unlawful trafficking of 66.1 grammes of a mixture containing 13.5 grammes of salts of esters of morphine, at No. 16 Fa Po Street, 2nd Floor, Block D, Yau Yat Chuen, Kowloon on the 27th September, 1978. 2. D1 was also charged with possession of a further 258.8 grammes of a mixture, containing 61.8 grammes of salts of esters of morphine, on the same date, the drugs being in a private car parked outside the address referred to in the first charge. 3. D1 was convicted on both charges and sentenced to 3½ and 4½ years concurrent. He did not appeal. 4. D2 was acquitted by the District Judge at the conclusion of the trial. 5. D3, D4 and D5 were convicted on the first charge. D3 and D4 were sentenced to 3½ years' imprisonment each and D5 was ordered to be detained in a Training Centre. 6. D3 appealed against conviction only. D4 and D5 appealed against both conviction and sentence. 7. At the conclusion of the hearing of the appeal, we allowed the application of D5 for leave to appeal against conviction and sentence and quashed the conviction. 8. We dismissed the applications of D3 and D4 and announced that we would give our reasons later. This we now do. Facts 9. About half an hour after midnight, in the early morning of the 27th September, 1978, a police party, under the command of Inspector Mackay, intercepted D3 in the driveway outside No. 16 Fa Po Street, Yau Yat Chuen. D3 was found to be in possession of a set of keys, one of which opened the front door of a flat on the 2nd floor of Block D of the same building. 10. Shortly afterwards, the police intercepted D1 and D4 in the same driveway and found in the possession of D1 a bundle of keys, one of which fitted the main door of the same flat. 11. D4 had no key in her possession at the time, but later a key which fitted the front door was found in her handbag inside the flat. She admitted that it was hers, though she asserted that she had never used it. 12. At about the same time, D2 was stopped in the driveway by the police, who found in his possession a set of keys, one of which fitted the main door of the same flat. 13. The police party used one of the keys taken from the defendants to open the door of the flat and entered. Inside, they saw D5, dressed in her pyjamas, lying on a sofa in the sitting-room. She also was found to have in her possession a key to the main door. 14. The flat was searched by the police party. In one of the bedrooms (marked Room B on the plan contained in the appeal papers) was a plastic wardrobe, inside which was a plastic bag containing caffeine, a substance used to reduce the concentration of heroin. In a corner of the same room were various items of equipment which a Crown witness testified were consistent with the mixing and packaging of dangerous drugs. These included a wash basin, metal tin, metal grille, a plastic reel with handle, a metal spoon, a table knife, a metal sheet, a metal spade and two electric lights. All of them were inside a metal box which was unlocked but shut. 15. In an unlocked cupboard in the wall-unit in the sitting-room, pushed to the back of the compartment, was a package which, after analysis, was found to contain the quantity of dangerous drugs alleged in the first charge. 16. In the same wall-unit, in separate closed but unlocked compartments, were found an electrical heating machine, a set of scales and a box of weights. 17. Also discovered in the flat were a tenancy agreement, showing that the tenant of the flat was D1, and a hire purchase agreement in the name of D1, relating to a car, registration number BT 7428, which was standing outside the building. Shortly afterwards, the car was searched by the police, who used a key seized from D1 to unlock it. The car was found to contain the quantity of dangerous drugs listed in the particulars of the second charge. Judge's Findings 18. The judge found it to be established to his satisfaction -
19. The judge concluded that these facts were sufficient to give rise to the presumptions contained in sections 46, 47(1), 47(3) of the Dangerous Drugs Ordinance, against all five defendants. 20. Perhaps we should mention that there appears to be a minor misdirection in that part of the judgment, in that the judge says -
21. The correct approach is as follows -
22. However, there is no question of the judge's error having prejudiced the defendants, since he correctly states the law at page 261 of the record. Rebutting the presumption 23. The presumptions arose under sections 46 and 47 of the Dangerous Drugs Ordinance, by virtue of the possession of a key to the premises by each of the five defendants. 24. It thereupon became incumbent upon each defendant to show, on the balance of probabilities, that he did not have possession, in the sense of legal possession, of the drugs or that he did not know their nature. 25. One way of rebutting this presumption is to show that his possession of the keys, which give birth to presumption, occurred in such circumstances as to show that the key holder was unlikely to exercise in reality any degree of possession or control of the drugs on the premises or was unlikely to know of their presence there. 26. Another way would be to show that the key holder himself had no access to that part of the premises in which the drugs were found. Or it might be established that the drugs had been in the premises only at times when the defendant was not present or could not have known of their presence. 27. It should be noted that for a defendant to show that his possession of the key was "innocent", in the sense that it came into his hands by chance and that such possession of itself could not have reasonably been connected with the drugs, may not be enough to discharge the burden. Once a key has given rise to the presumption of possession, it is the possession of the drugs which must be rebutted, not the possession of the keys. 28. In coming to a decision as to whether a presumption is rebutted, the judge must consider all the circumstances which indicate the relationship of the key holder to the premises and to other persons occupying them. 29. In doing so he has to take into account both the evidence of the Crown witnesses and that of the defendants, to see if the circumstances are such as to satisfy him that there has been a discharge of the burden which the presumption has placed on the defendant. What evidence was there to rebut the presumptions? 30. We have considered carefully what evidence was put before the judge which could have rebutted the presumptions which arose against D3, D4 and D5. (a) Third Defendant 31. With regard to D3, the judge discounted the evidence of the caretaker, which was to the effect that D3 had visited the flat five to six times a week since June 1978. He did so because it appears that the caretaker had told police officers on the evening of 26th September that D3 only came occasionally. 32. D1's evidence was to the effect that D3 visited the flat five to six times a week and slept on a sofa in the sitting-room. D1 gave evidence that a key to the premises had been given to D3 in the following circumstances. One or two weeks before the arrest, according to D1, D3 told him that he had had an argument with his family and did not intend to return home for the night. D1 offered to put him up for the night in the sitting-room and gave him a key to the front door "for the time being". 33. D2 gave evidence that he saw D3 in the flat about eight times. D4, who moved into the flat at the end of August, 1978 to live with D1, says that she saw D3 in the flat on a few occasions. 34. D5 said that she saw D3 come to the flat to see D1 and to play mahjong. She added that D1, D2 and D3 were close friends and that D3 spent two to three nights on the sofa in the sitting-room. 35. D3 himself gave no evidence. The judge refers to this at the bottom of p.262 of the record, as follows -
36. This seems to us to be a perfectly proper comment. Indeed, defendants against whom a presumption has arisen are taking a grave risk in electing not to give evidence on their own behalf. 37. In an ordinary prosecution, an accused person can remain silent, leaving it to the Crown to prove beyond reasonable doubt every element of the offence charged against him. 38. However, where a presumption arises against him, as a result of which it is for him to satisfy the court on the balance of probabilities of his innocence, in practical terms silence becomes highly dangerous to him. 39. In such an event the judge, when considering whether or not the presumption has been rebutted, can only look at the evidence given by Crown witnesses and other defendants. This must lessen the chances of a defendant discharging the burden. 40. The fact that D1 was the tenant, and was found guilty of possession of dangerous drugs both in the flat and in the car, indicates that D1 was the ring-leader of this group. But D3 was a close friend of D1, a frequent visitor to the flat and held a key to it. He was thus far more than a casual social caller. 41. In view of these facts, and of the paucity of evidence put before the judge which could be said to tend to rebut the presumption, it is hardly surprising that the judge reached the conclusion that the presumption against D3 had not been rebutted. We cannot but agree with him. (b) Fourth defendant 42. D4 was admittedly the mistress of D1. She moved into the flat to live with him in August, 1978 and shared Room C. the larger bedroom in the flat, with him. 43. D1, who denied all knowledge of the presence of any drugs or equipment in the flat, admitted that D4 was living with him as his mistress and that she had moved into the flat with him. 44. Although she gave evidence, there is no mention in her testimony, as the judge observes on p.259, of the drugs or equipment found in the flat. He does not in his judgment say that he draws any inference adverse to D4 from her failure to mention the subject matter of the charge during the course of her evidence. However, it is unfortunate that she did not do so, in the sense that such evidence as she might have given on the subject might have provided additional material tending to rebut the presumption against her. 45. The matter could be summed up by saying that while she is not to be prejudiced by not having dealt with the matter in her evidence, she lost the advantage which she might have gained by doing so. 46. It is necessary, in the case of D4, to examine with some care her status in the premises. The fact that she was the mistress of D1, the main controller of the drug operation, makes it likely that she would have known precisely what was going on in the flat. 47. The main argument which was put forward on her behalf was that her average working day, as described by her in evidence, was such that she was normally absent from the flat from early in the morning until late at night, with the exception of a period of one to two hours in the early evening. 48. It was said that this daily schedule would have made it unlikely that she would have known of the presence of the drugs in the flat, had they arrived in the early afternoon of the 26th September, and that there was evidence to suggest that they had been brought into the flat at about 2 p.m. on that afternoon. Such evidence, however, was no more than an inference from the evidence of D5, that the box of equipment was placed by D1 in her room (Room B) at about that time. 49. This is a possible inference, but it cannot be said to be any more than that. It would be wrong for us, on the basis of such flimsy material, to find that the drugs arrived in the flat during the afternoon of the 26th September. 50. It was also objected that the judge did not examine the evidence of D4 in detail and say why he rejected such evidence as might tend to discharge the presumption. It is true that he did not do this, though he makes a clear finding that D4 had failed to rebut the presumptions and that D1 and D4 knew the existence and nature of the drugs found in the sitting-room and of the other paraphernalia discovered in the flat. 51. But, in any event, where was the evidence which might reasonably have rebutted the presumption? 52. Surely the circumstances in which D4 lived in the flat were such as to make it likely that she must have known precisely what was going on in it. 53. As the mistress of the principal tenant, she had the run of the flat. Although she denies ever having had anything to do with the cleaning of it, it seems inherently improbable that D1 would have dared to leave the drugs in an unlocked cupboard in the sitting-room, if D4 had not been a party to the knowledge that the drugs were there. 54. The judge set out fully the evidence which was given by D4, and the evidence of the other defendants insofar as these bore upon the position of D4. He decided that the presumption had not been rebutted and in our opinion he was more than justified in doing so. (c) Fifth Defendant 55. At the time of the offence, this girl was only 16¾. She had been a sub-tenant of Room B in the flat, the room in which a box of drug dispensing equipment was found, since June, soon after D1 moved into the flat. She paid a monthly rent for her occupation of Room B, plus the use of the lavatory and kitchen. According to her, she also went into the sitting-room occasionally. 56. She gave evidence that none of the furniture in the sitting-room belonged to her, though a few items of furniture in her bedroom did. 57. Articles of male clothing were found by Inspector Mackay in her room. She denied this but the judge believed the Inspector. He does not say what effect this had on his mind, though the context in which he reaches this finding suggests that it must have affected his assessment of her credibility to a substantial degree. 58. However, though he does not say so, we feel there is some danger that he may have been influenced by her denial of the presence of the clothing, which he rejected, in considering her credibility with regard to her knowledge of the presence of dangerous drugs in the flat. 59. It was submitted to us by her counsel, with some force, that a girl of this age would be very reluctant to admit publicly to sexual misconduct with a married man. It was asserted by other witnesses that D2, the man who was acquitted, spent the night with her frequently in Room B. It is important to remember that because a witness lies about her sexual encounters does not necessarily mean that she will lie about everything else. 60. D5 gave evidence as to how the equipment came to be found in her room. According to her, the first defendant came to her room about 2 p.m. on the afternoon of the 26th September, bringing the box containing the various articles, to leave it there for two or three days, because it would be unsightly to put the box in the sitting-room. 61. D5 says that, when she asked what the articles were, D1 replied that they were electrical appliances. However, she did not look into the box and did not know precisely what was in it. She also denied any knowledge of the presence, in the plastic wardrobe, of the bag of caffeine and of the drugs or equipment in the sitting-room. 62. This is, on the face of it, a credible explanation, which, if accepted, would be adequate to discharge the presumption. We can find nothing in the judgment which suggests that the judge misdirected himself, or that he based his conclusion upon any misreading of the evidence, or upon an unjustified finding of fact, when concluding that D5 had failed to rebut the presumption. Nor can we say that it was not open to him to reach the conclusion which he did. 63. Nevertheless, this is one of those somewhat uncommon cases in which we feel a measure of uneasiness, in view of the circumstances which surrounded the offence, so far as D5 is concerned. 64. Her case is very different from that of D4, the mistress of D1, who surely must have known what was going on in the premises. It is inherently less likely that D5 would know what was happening. She was a sub-tenant, who rarely used any part of the premises except Room B. There was no lock on her door, so that D1, or indeed anyone else, could enter it at any time when she was out of the flat. 65. It is worth noting that she denied that D2 was her lover, though the judge seems to have come to the conclusion that he was. If he was, it should have weighed in her favour that the man with whom she was most closely associated in the premises was himself acquitted of the same offence with which she was charged. 66. We think that it is also necessary to take into account the age of D5, which makes it far less likely that she would have been taken into the confidence of those who were organizing the drug trafficking, which was no doubt being conducted from those premises. She had a separate room and a separate life and work from the other occupants. 67. These considerations leave us with a feeling that injustice might have been done to D5. We put it no higher than that, but it is sufficient to persuade us that the conviction of D5 was unsafe and that, accordingly, we should give her leave to appeal against conviction and quash the conviction. Obligation of District Judge 68. During the appeal, counsel for the appellants criticized the approach of the District Judge to the obligation imposed upon him by section 80 of the District Court Ordinance, which reads as follows -
69. The way in which a judge should discharge his duty under that section was considered by the Full Court in LAM Tin-chung v. R.(1). In that case the issue on appeal was whether the judge had considered a possible defence of bona fide claim of right to a charge of robbery with aggravation. This defence was not mentioned in the Reasons for Verdict, but it was submitted on behalf of the Crown that the appellate court should presume that a professional judge, sitting without a jury, had not overlooked it. In that context Mills-Owens, J. said at page 113 -
As this court has said before, that passage should not be regarded as authority for the proposition that reasons for verdict should closely resemble a summing-up. That proposition could not possibly be right, for a judge in giving reasons for verdict must make findings of fact, whereas a judge in summing up reviews the evidence so that the jury can make findings of fact. 70. The court in LAM Tin-chung v. R.(1) was concerned to decide what matters of law needed to be mentioned in reasons for verdict and with nothing else. In the course of his judgment Mills-Owens, J. pointed out that a judge, in his reasons for verdict, need not expressly mention such obvious matters as the onus and standard of proof, although they would necessarily appearing in a summing-up. 71. The duty of a District Judge was fully dealt with by the Full Court in R. v. R.E. Low(2) (quoted in R. v. Godber(3)), the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation to set out his mental processes in full. At page 82, Blair-Kerr, J. deals with the question as follows -
72. We consider that the passage quoted from the judgment of Blair-Kerr, J. sets out correctly the general duty of a District Judge. 73. LAW Tin-cheung(1) does not seem to us to conflict with Low(2), if LAW Tin-cheung(1) is read in the way we have suggested - i.e. that it deals only with the question of what matters of law should be mentioned in reasons for verdict. 74. We were referred also to LAW KEUNG v. R.(4) an appeal from the decision of a magistrate to the High Court in which the then Chief Justice expressed himself (obiter) on the obligation of a District Judge, as follows -
75. This passage imposes a heavier, and different, burden on a District Judge than that suggested by the Full Court in LAW Tin-cheung(1) or LOW(2) LAW Tin-cheung(1) and LOW(2) should, in our view, be followed and not LAW Keung(4). 76. The judgment which was the subject of the appeal before us, covered twelve pages of closely spaced typescript. The judge went further than the section requires him to do. A short statement of Reasons of Verdict seldom needs to be as extensive as this. 77. Without in any way wishing to discourage a District Judge from giving a detailed review of the case where he considers this to be necessary, judgments of this length are seldom required. Representation: Miss Fi-lan Chua (Haldane & Co.) for 2nd appellant A. Huggins (Walter Woo & Co.) for 3rd appellant A. Huggins (Rowdget W. Young & Co.) for 4th appellant C.A. White for the Crown/Respondent (1) (1970) H.K.L.R. 105 (2) (1961) H.K.L.R. 13 (3) (1975) H.K.L.R. 340 (4) Crim. App. 625/72 |