THE QUEEN v. FAN SHU SUM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 236 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Tanzer, at South Kowloon Magistrates Court, of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(l) of the Dangerous Drugs Ordinance, Cap. 134. He admitted simple possession and gave evidence to the effect that the drugs were for his own consumption. The magistrate found that he had failed to rebut the presumption and convicted him accordingly.

2. His evidence was that he was an addict and had bought the drugs - 9.63 grammes of a mixture containing 0.68 grammes of salts of esters of morphine - for $220. This was sufficient to last him for five days. His income as a laundry worker was $3,000 - $4,000 per month. He gave his mother $1,500 as rent and spent about $1,500 a month on drugs. In spite of this evidence, the magistrate disbelieved that all the drugs were for his own consumption.

3. He cited the English case of R. v. Wilson^(l), in which Kilner Brown J., giving the judgment of the Court of Appeal, said a propos of the rebuttal of the presumption in S. 30(2) of the Sexual offences Act 1956 at p. 249 :

"The presumption and its possible rebuttal are pure matters of evidence and decision upon fact. In the summing-up, at p. 22 of the transcript, the learned judge put it in this way : 'If this woman is a prostitute, and if he was living with her, then he must be presumed to be living on her immoral earnings unless he proves the contrary. He has to prove something definite to the contrary'. He then proceeded to examine the evidence. Earlier he had made it quite plain to the jury that where this presumption arises the burden of proof shifts to the accused, the standard of proof being on a balance of probabilities and not the full burden which applies to the prosecution.

It seems to this Court therefore that there is no substance whatever in the submission - and indeed that it is a misconception in the circumstances of this case, where section 30(2) applies - that there is any misdirection at all by reason of a failure to assist the jury on the nature and quality of the 'living on'."

4. The magistrate has stressed several times in his Statement of Findings that the appellant had to prove something definite to the contrary. He also referred to the appellant's 'unsupported assertions' that he earned sufficient income to support his addiction and to the fact that no expert evidence was called to testify to the degree of his addiction.

5. I think the magistrate's reliance on that passage in Wilson^(l) led him into error. In that case the appellant had admitted receiving sums of money from the prostitute with whom he was living. It was therefore, wholly understandable that the trial judge directed the jury that, to be satisfied that the presumption was rebutted , they should look for 'definite' evidence that the appellant had an alternative source of income and was not living on the prostitute's earnings.

6. In the present case the circumstances are different. There are several matters that emerged in the course of the prosecution case, which tend in themselves to rebut the presumption. The drugs were in a single packet, the mixture was heavily diluted to approximately 7% proof, the appellant was not acting suspiciously, he claimed at the first opportunity that the drugs were for his own consumption.

7. The first factual evidence provided by the appellant concerned his income. There was nothing in the least improbable about this evidence. His evidence was that he paid $220 for the drugs in question. There was no evidence that this was below the market price.

8. In other words, the evidence, both for the prosecution and defence, all pointed in the same direction. A defendant, in these circumstances, does not have to go further and provide corroboration of his evidence, or indeed 'something definite to the contrary'.

9. I am not satisfied that the magistrate gave sufficient consideration to the above matters. Had he done so, he should have found that the appellant had succeeded in tipping the scales in his favour.

10. The appeal is allowed and the appellant is convicted of simple possession of dangerous drugs, contrary to section 8 of the Ordinance. I reduce his sentence to nine months' imprisonment.

(1) [1984] C.A.R. 247