FACC No. 4 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 4 OF 1998 (CRIMINAL)
(ON APPEAL FROM CACC No. 458 OF 1997)
||CHAN CHUEN HO
||HONG KONG SPECIAL ADMINISTRATIVE REGION
Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr JusticBokhary PJ and Lord Nicholls of Birkenhead NPJ
Date of Hearing: 1 March 1999
Date of Judgment: 16 March 1999
J U D G M E N T
Chief Justice Li :
1. I agree with the judgment of Mr Justice Ching PJ.
Mr Justice Litton PJ :
2. I agree with Mr Justice Ching PJ's judgment.
Mr Justice Ching PJ :
3. The appellant was put upon his trial before a jury on two counts of trafficking in a dangerous drug, both offences being alleged to have occurred in the early hours of 28 October 1996. The first, of which he was convicted, was that he was trafficking in 197.17 grammes of a mixture containing 37.28 grammes of heroin hydrochloride in Austin Road outside a residential building known as No. 150A. The second, of which he was acquitted, was that he was trafficking in a mixture of 166.47 grammes containing 126.53 grammes of the same drug at what was described as the middle room on the third floor of that building. He appealed to the Court of Appeal against his conviction on the grounds of a misdirection. The Court of Appeal held that there was indeed a misdirection but applied the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221, and dismissed his appeal. He was granted leave by the Appeal Committee to appeal to the Court of Final Appeal on the ground that a substantial and grave injustice had occurred.
4. So far as is relevant to the conviction, the evidence of the prosecution was that sometime after 3:00 am of the morning in question a party of police was on duty in Austin Road. They saw the appellant emerging from the building and searched him. They found on him the dangerous drugs the subject of the first count, which were contained in seven reusable plastic bags themselves contained in a larger plastic bag. He had almost $13,000 on him and a key. He gave no answer to questions about these drugs but did say that the key found upon him was the key to the premises mentioned in the second count. A search of those premises revealed the drugs the subject of that count. The appellant's evidence was almost wholly different. He was in employment from which he claimed he earned $12,000 to $13,000 per month. He was not arrested outside the building at all. He was arrested elsewhere when he had been going to repay a loan of $9,000 to a friend. He had been beaten and had had the drugs planted upon him and had been taken to the premises mentioned. No search of those premises was conducted in his presence. He had rented the room but had not moved in. He was still living with his mother in Shatin.
5. If the jury accepted the evidence of the prosecution briefly outlined above they would have been entitled to find that the appellant was in possession of the drugs mentioned in the first count even without the assistance of any statutory presumptions. The trial judge correctly directed the jury on those presumptions arising under section 47(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, and told them that the standard of proof required of the appellant in rebutting them...