THE QUEEN v. PANG MOON SING

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J U D G M E N T

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Macdougall, J. delivered the judgment of the Court:

1. The applicant appeared before His Honour Judge Cameron in the District Court on one charge of simple possession of heroin, one charge of possession of heroin for the purpose of unlawful trafficking, one charge of resisting a police officer in the execution of his duty and one charge of possession of eight sets of syringes fit and intended for injecting a dangerous drug.

2. On both the charge of simple possession of heroin and the resisting arrest charge, he was the sole defendant, but on the other two charges he was joined with two other defendants, one of whom was his wife. He pleaded guilty to the simple possession charge and to that of possession of syringes, but both he and his co-accused pleaded not guilty to the other two charges.

3. Three police officers gave evidence that they had intercepted the applicant in a lane way at the rear of 19 Tak Cheong Lane. At the time he was carrying a child. They searched him and found both a packet of dangerous drugs, which formed the subject of the first charge, and a bunch of 3 keys. Having declared that he was under arrest the officers attempted to handcuff him, but the applicant struggled and refused to submit. In order to affect the arrest, one of the officers took the child from him. The applicant pushed the officer to the ground and began to run away. Another officer caught him and, after a struggle during which the applicant and two officers fell to the ground, the applicant was eventually subdued. He then appeared to lose consciousness momentarily. When he recovered he was cautioned and was told that he was under arrest for being in possession of a dangerous drug and for resisting arrest. In reply he stated "I will take responsibility for all of the white powder. It has nothing to do with my wife."

4. Two of the police officers then went to 19 Tak Cheong Lane and by using the keys they had found on the applicant's person were able to open the iron grille and wooden door at the main entrance. They then entered the building and went to a cubicle whose door was closed but unlocked. On entering the cubicle the police officers found the applicant's wife and another man watching television. A search of the cubicle revealed not only the syringes and the heroin that formed the subject of the possession for the purposes of unlawful trafficking charge but also rent receipts for the cubicle in the name of the applicant.

5. On a submission of no case to answer in respect of the possession for unlawful trafficking charge, the judge ruled that because the applicant had been in possession of the key to the front door of 19 Tak Cheong Lane the presumption under section 47(1)(d) of the Dangerous Drugs Ordinance arose against him in respect of the drugs found in the cubicle. He also ruled that, apart from the presumption, the presence of the rent receipts in the cubicle, coupled with the fact that the applicant had pleaded guilty to having been in possession of the syringes discovered there, and the evidence that a packet of heroin had been found on his person when he was the lane outside the premises, was sufficient to establish a prima facie case that the applicant was in possession of the heroin found in the cubicle. The relevant part of section 47 reads as follows:-

"Any person who is proved to have had in his possession or- custody or under his control-

(a).............

(b).............

(c) any place or premises or the part of any place or premises in which a dangerous drug is found;

(d) the keys of any place or premises or part of any place or premises in which a dangerous drug is found; shall until the contrary is proved, be presumed to have had such drug in his possession."

6. Although it is not clear, it appears from the evidence that the premises at 19 Tak Cheong Lane consisted of a number of cubicles each of which was occupied by a different tenant. Where drugs are found in one of a number of cubicles in a building, each of which is rented to a different tenant, the mere fact that a person has in his possession a key to the common entrance to the building is not capable of giving rise to the presumption. For the presumption to arise under section 47(1)(d) it must be proved that the key is to the door to the premises or part of the premises in which the drugs were found. For this purpose, each cubicle occupied by a different tenant constitutes premises separate from the others. Had one of the applicant's keys been found to open the door to the cubicle or some part of the cubicle in which the drugs were found, the presumption that the applicant was in possession of the drugs would have arisen. However, it seems that the police had made no attempt to discover whether the third key in the bunch fitted the lock to the cubicle.

7. We are therefore of the opinion that the judge was wrong in ruling that the presumption under paragraph (d) had arisen. However, we accept that the evidence forming the alternative basis on which he found there to be a case to answer was sufficient to establish a prima facie case against the applicant that he was at least in joint possession of the heroin found in the cubicle. Moreover, we are of the view that, had the judge considered the matter, he would have come to the conclusion that because of the existence of the rent receipts in the name of the applicant the presumption under section 47(1)(c) had arisen.

8. We observe that in giving his ruling the judge made no reference to the admission made under caution by the applicant after his arrest outside the premises. If made voluntarily this admission would. have been evidence that the applicant was at least in joint possession of the heroin found in the cubicle

9. In his Reasons for Verdict the judge did not mention whether there had been a challenge to the admissibility of this admission on the ground that it had not been made voluntarily. Moreover, although. he made it clear that in relation to the evidence concerning the resisting of arrest charge he believed the three arresting officers, he gave no indication as to the view he formed of the evidence concerning the admission. In the circumstances, we must assume that the judge consciously disregarded this evidence. However, it follows from what we have already said that this does not affect our view that the judge was right to rule that there was a case for the applicant to answer in respect of the possession for the purpose of unlawful trafficking charge.

10. The applicant and his wife, who also gave evidence, both admitted that they occupied the cubicle in which the heroin had been found. The applicant also admitted that the third key in the bunch that had been found on his person fitted the door to the cubicle. Thus, although the presumption under section 47(1)(d) had not arisen during the course of the prosecution case, it now arose as a consequence of that admission. The applicant's version of the events of that day was that, having made a telephone call to his wife to request her to come to his stall to collect some goods, he had gone to a tea house where he was unexpectedly approached by a man who demanded to know if the applicant "had taken his things". An argument broke out and the man departed. However as he was making his way home the applicant was again accosted by the man who told him that if he had taken "the things" he should return them. On arrival at his home the applicant asked his wife whether she had taken someone else's belongings and, when she replied that she had not done so, told her about the incident with the man. He then left the cubicle with his son to go to the market to buy food. On his way back five men suddenly fell upon him and snatched his son. On a consideration of the evidence before him the judge believed the police officers and disbelieved the applicant. He therefore convicted him on both charges.

11. The applicant now appeals against all four convictions on the ground that the judge had believed the police and had given no consideration to his defence. As two of the convictions followed on pleas of guilty which the applicant does not suggest were either ambiguous or made under any other circumstances that would justify this court in concluding that they were nullities, we see no reason to interfere with either conviction.

12. Having examined the judge's Reasons for Verdict we are of the view that there is no substance in any of the complaints which the applicant now makes in respect of the other two convictions. There was ample evidence on which he would properly conclude that the applicant was guilty of each offence. For these reasons therefore the application for leave to appeal is refused.