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 was one upon the balance of probabilities. It follows from the conviction that they must have found the possession proved. No attack is made on the directions as to possession.
6. There is, however, now no statutory presumption as to the intention to traffick. Having correctly directed the jury on possession and on the presumptions as to possession, the trial judge then gave the direction of which complaint is made. He said,
“Failure to rebut the presumptions will result in the accused’s conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs, the subject of the two counts, and that his possession was for the purpose of trafficking in them.”
Almost immediately afterwards he said,
“Additionally, the prosecution has put a number of matters before you, each of which it invites you to accept as having been proved …. When these various matters, if established, are looked at together, the only reasonable inference to be drawn from them is that he was in possession of the two lots of drugs in order to traffick them.”
He then listed eight matters four of which could only relate to the second count. One of them, the fifth, related to both but three of them related only to the first count.
7. Of those relating to the first count, the first was that the drugs were packed as already described. The second was that the drugs were found in the appellant’s possession as he was leaving the building in which he had rented accommodation. In the fourth, he referred to the total quantity of the drugs in both counts and described it as substantial. The fifth was that when the appellant was searched he had a large sum of money in his pocket. As to this last matter, prosecuting counsel paid tribute to defence counsel for the way he had dealt with it and said that it would be quite improper to seek any order in relation to it. Nothing more need be said about it. Since there was an acquittal on the second count, the discovery of drugs in the premises he had rented in the building cannot be relevant. It may be added that the drugs said to have been found in the premises were of a greatly different purity from those found on him so that there is no apparent connection between the two lots. It remains that he did have premises in the building and the evidence was that he was stopped in the street in the early hours of the morning with a large quantity of drugs when he was leaving that building. He was not going home to Shatin. Having regard to his defence, there was no explanation as to why he had the drugs on him and there was no...