R. v. CHEUNG WAI FUNG, RONNY

IN THE COURT OF APPEAL

1994, No. 285
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. The case comes to us from the District Court. Two youths were on trial before Deputy Judge Thomas on a charge sheet containing three charges.

2. This applicant was one of those two youths. Only one conviction was reached against him. And it was of an alternative offence, namely, simple possession of dangerous drugs. That was under the 3rd charge, which was preferred as one of trafficking in dangerous drugs. That conviction was reached on May 9 last year; and on the 23rd of that month the applicant was put on probation for one year.

3. The case outlined by the prosecution ran along these lines. At about 8:15 p.m. on April 8, 1993, in Nathan Road, a party of police officers in plain-clothes went up to two teenaged boys, being the two accused, and attempted to search them. A struggle ensued. A police constable was assaulted by the applicant, who was the 2nd accused below. Eventually, both accused were subdued. A packet of dangerous drugs was found on the 1st accused. Those dangerous drugs became to the subject-matter of the 1st charge, which was against both accused and which was of trafficking in dangerous drugs.

4. The alleged assault led to the 2nd charge, which was against the applicant alone and which was of assaulting a police officer in execution of his duty.

5. As far as the 1st charge is concerned, the applicant was acquitted upon a successful submission of no case to answer; and the other accused was convicted of the alternative offence of simple possession.

6. As far as the 2nd charge is concerned, the applicant was acquitted at the end of the case.

7. We have already indicated what happened on the 3rd charge - resulting in the present application.

8. Continuing with the case as outlined by the prosecution, it was that after his arrest and caution in Nathan Road, the applicant led the police officers to the staircase of a building in Liberty Avenue, Kowloon City, where at the 2nd floor level he pointed to a fire hydrant from behind which the police officers recovered two packets of dangerous drugs. Those dangerous drugs, which came to 27.24 grammes of a mixture containing 11.13 grammes of salts of esters of morphine, became as subject-matter of the 3rd charge, that charge being against the applicant alone. The judge did not think that there was any evidence of trafficking. But he was satisfied beyond reasonable doubt that the applicant had led the police to where those drugs were hidden. That, in his view, was sufficient in the circumstances for convicting him of simple possession of the same.

9. In finding that the applicant had led the police officers to those drugs, the judge proceeded on the testimony of one of the police officers, namely, the 5th prosecution witness. The judge's findings leading to the conviction now challenged are attacked as being unsafe and unsatisfactory.

10. First of all, it is said that the judge ought not to have found that the applicant led the police to find the dangerous drugs in question. Looking at the whole of the evidence, it seems to us that the judge was entitled, safely and satisfactorily, on the testimony of the police officer whom he considered reliable, to find that the applicant had indeed led the police to find the dangerous drugs in question.

11. Secondly, it is said in effect that the conclusion that the applicant was in possession of those dangerous drugs was unsafe and unsatisfactory because possession was not the only reasonable inference to draw from his having led the police to those dangerous drugs.

12. An inference of knowledge could certainly be drawn. But as to possession, we have come to the conclusion that, in all the circumstances of what little of the prosecution's case was left after the judge had rejected the rest of it, it was not possible safely or satisfactorily to exclude all rival inferences as being unreasonable leaving only the inference of possession. The circumstances were certainly suspicious. Indeed, one could say that the inference of possession was the most probable one. But we do not think that one can go so far as to say that it was the only reasonable one.

13. That being so, we treat the hearing of this application as the hearing of the appeal itself and, doing so, allow the appeal: quashing the conviction and setting aside the sentence.