THE QUEEN v. LAM YUEN CHU

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J U D G M E N T

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Cons, V.P. delivered the judgment of the Court:

1. LAM Yuen Chu ("the Defendant") was convicted in the District Court of the possession of dangerous drugs for the purpose of unlawful trafficking. The date of the offence was 10th July, 1988, the place was flat K, 1st floor, 50 Tung Ming Street, the amount of the mixture of drugs involved was 587.89 grammes. She was sentenced to imprisonment for six and a half years. She seeks leave to appeal against both conviction and sentence.

2. The summary of facts put before the judge below was as follows:-

"On 10th July, 1988 PW1, PW2, PW3 (three policemen) laid ambush in the corridor of flat K, 1st floor, 50 Tung Ming Street. The defendant emerged from the staircase and proceeded along the corridor. She was observed opening the grille of the above premises. She looked around as she opened the grille, and then closed the grille and commenced to walk back to the staircase where she was intercepted by PW2. She was taken back to the premises. She was asked which room she occupied. The room was locked and the police gained access to the room by the use of keys seized from the defendant. Inside the room a blue bag was found containing drugs. Upon analysis the drugs were found to be a mixture of 587.89 grammes containing 48.93 grammes of salts of esters of morphine. Subsequently an investigation revealed that the defendant rented the room from PW7 on 8th July, 1988 and received the keys for the premises on that day."

3. The Defendant was represented at her trial by experienced counsel. We note from the Reasons for Verdict given by the judge that "At the trial it was common ground that the defendant was seen to approach the flat in question, open the metal grille, close it without entering the flat and walk to the staircase leading to the street, at which point she was apprehended." Counsel also conceded that because of the Defendant's possession of the keys to the flat and the cubicle, a presumption arose under the Ordinance that she was in possession of the dangerous drugs.

4. In an attempt to rebut that presumption, and the further presumptions that would arise under the Ordinance, the Defendant gave in evidence to the judge below a long and involved story which culminated in her renting the room in which the drugs were found on behalf of a friend of a friend; she had met the further friend the year before, when, at the instigation of the first friend, she had falsely posed as the further friend's wife in order to enable him to rent the same room; on the present occasion the further friend did not turn up and it was when she was accompanying the first to the room on 10th July that the incident recounted by the police took place; she knew both men to be drug addicts but had at no time entered the room, nor did she know that there was any drug inside. The judge did not believe her story. In view of the presumptions of law contained in the Ordinance conviction was inevitable.

5. That was on the 22nd of December last year. On the 17th of January, almost four weeks later, the Defendant filed Notice of Appeal. The grounds which she put forward were firstly, that there was no sufficient evidence on which the Court could safely convict, and secondly, that in all the circumstances the conviction was against the weight of evidence, manifestly unsafe and unsatisfactory.

6. The Defendant came before another division Court on 23rd May. On that occasion she was not represented. I quote now from the note recorded by the President of the Court at that time -

"At the hearing of this application the woman alleged that counsel at trial had advised her to accept that she was in possession of keys to the premises and that she had gone there opened a door, left it and was then arrested. She denied she had the keys or that she was arrested in the circumstances described. She stated that in a renewal of a bail application to a High Court Judge, made prior to trial and after a refusal of bail by a magistrate, she had made an affirmation, having been warned by the Commissioner who administered an oath/affirmation, that she must tell the truth. That affirmation contains a story contrary to that given at trial."

The matter was adjourned so that the papers of that hearing could be obtained.

7. We have now had a chance of reading that affirmation. It is indeed contrary to the story she gave at trial. So much so, that if it be true, it would be inconceivable, in the absence of satisfactory explanation, that the Defendant did in fact accept advice of counsel to give the story that she did in the witness box, bearing in mind that at that time too she had taken an affirmation that she would tell he truth. There are other matters which are not included in the affirmation, which she has mentioned to us today and in respect of which also, so she says on the advice of her counsel, she gave untruthful evidence. By way of explanation she told her solicitor and counsel the truth before the trial, but being ignorant of law, she accepted the advice of counsel to give evidence which would conform with the police evidence. This is an explanation not advanced until many months after the trial, despite the obvious opportunity of the original Notice of Appeal. We are not satisfied that it is sufficient. The question for the judge was simply whether the defendant's story was true, judging that on the balance of probability. He came toto the conclusion that it was not true. The responsibility for that decision is one given to him by the law. We can interfere if there was no evidence to support that conclusion. We cannot however say that there was not. The application for leave to appeal against conviction must be refused. The sentence that he imposed was fully in accord with guidelines issued by this Court and again we cannot interfere. That application must also be refused.