THE QUEEN v. CHAN YUK-WING

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 8 December 1995 the applicant was convicted of five offences by His Honour Judge Gould in the District Court.

2. There were two offences of trafficking in dangerous drugs. The first concerned 300 tablets of drugs which were sold in the street. The second concerned those tablets which were found in a place which became known as Room 1710. Also found in that room were antibiotics which were the subject of the 3rd charge and poisons which were the subject of the 4th charge. The 5th charge related to 80 tablets which were found in a jacket at a place known as the Sunny Dispensary.

The facts

3. The offences were alleged to have taken place on 18 January 1995. Customs Officers were watching the Sunny Dispensary in Wong Tai Sin. That had been until about June 1994 a licensed, registered pharmacy but by January the licence had been lost or given up. They watched the applicant leave those premises at about 4.30 p.m. They followed him to an MTR station where he met another man. He sold him the 300 tablets which are the subject of the 1st charge. The applicant received money which he pocketed. He returned to the Sunny Dispensary.

4. Shortly afterwards, the officers went in and asked him about the sale of the tablets which he denied. They found $2,400 in his pocket along with some keys. The officers had a search warrant for Room 1710 which was in the Wong Tai Sin Estate. They went to that room with the applicant and found that he had on him two keys - one opened the grille and the other opened the door of the flat. Inside were the drugs which were the subject of the three charges we have mentioned. He was later taken back to the Sunny Dispensary and there in a jacket were found the drugs in the last charge. He admitted they were his.

5. The applicant seeks leave to appeal against his convictions in the three charges which concern the drugs, poisons and antibiotics which were found in Room 1710.

6. Mr McCoy who appears for the applicant submits that the judge's reasons for convicting on these three charges were flawed. The main thrust of his argument relates to his examination of the evidence which led to his conclusion that the applicant was in possession of those drugs. He seeks also to keep open whether storage amounts to trafficking within the law. He has rightly said that this Court is bound by a previous decision on that point. We say nothing further save to record that the point is kept open by Mr McCoy.

7. Turning to the thrust of the argument, it is this. The judge considered the evidence before him. He took into account a number of matters in coming to his conclusion that the applicant was in possession of the drugs:

8. Linking the last point with the connection which he had been invited to make between the two premises, he said: "The common law presumption of continuity, through to 18 January 1995, has not been rebutted." Although it is not entirely clear what the judge meant by that, it would seem that he was making a finding that the applicant was in possession of the drugs not only because of the matters we have mentioned, but also because he accepted the evidence that the applicant was the boss of the Sunny Dispensary in September 1994 and took into account the connection between the two premises, and relied upon a presumption of continuity that he was effectively in charge of Room 1710.

9. Mr McCoy submits that there is no such thing as a presumption of continuity in the criminal law. That in this respect the judge misdirected himself seriously. He relied upon a presumption of continuity which is unknown to the criminal law and which had not been rebutted. He threw upon the applicant the burden of rebutting the presumption in his reasons for verdict when he had not given evidence.

10. Mr McCoy cited in support of his contention that there is no such presumption - certainly in the criminal law - R v Lumley (1869) LR 1 CCR 196 and a more recent case R v Olejarnik (1994) 72 A CriR 542, 547. Perhaps the principle is best expressed in Phipson on Evidence, 14th edn para. 17-01 where the author says:

"The use of the expression 'presumption of continuance' obfuscates the fact that whether or not a state of affairs continues is a question of fact and depends only on the totality of the evidence and the natural probabilities. The court will no doubt be less ready to infer the continuance of an unlawful than a lawful state of affairs; but there can be no rule as to the inferences the court will draw from previous conduct in the absence of direct evidence as to conduct at the material time."

We accept that as an accurate statement of law. Of course in a criminal case, the inference to be drawn from the facts must be the only reasonable inference that can be drawn.

11. In this respect, therefore, there can be little doubt that the judge misled himself.

12. Mr Saw for the Crown nevertheless supports these convictions. He invites this Court to look at the whole of the evidence including the sale of drugs which the applicant made, the finding of the keys and the other circumstantial matters concerning the connection between the Dispensary and the room which he described as the store. But the question for this Court is a simple one. Had the judge not misdirected himself and had he directed himself correctly on what inferences he could properly draw, would this finding still have been the inevitable and only finding which he could have reached? Of course, the keys alone were strong evidence against the applicant. The finding of the keys for the room in the circumstances was a matter which of itself required explanation. But it is not for this Court to make the finding. Was it inevitable that the judge would have convicted had he not misdirecting himself? We are not able to say so.

13. In the circumstances these convictions for the three offences of possession are unsafe and unsatisfactory, the judge having misdirected himself in law. So far as those three offences are concerned, we give leave to appeal against those convictions. We treat the application as the appeal, we allow the appeal in each of those cases and quash the convictions.