THE QUEEN v. LEUNG SIU KEE AND ANOTHER

-----------------------

-----------------------------------------

JUDGMENT OF THE COURT

-----------------------------------------

Macdougall, J.A.

1. The two applicants were convicted after trial by Deputy Judge Cannon in the District Court of having had in their possession a dangerous drug, nawely 59.16 grammes of a mixture containing 28.58 grammes of salts of esters of morphine, for the purpose of unlawful trafficking. They now apply for leave to appeal that conviction.

2. Briefly the evidence for the prosecution was as follows. At about 5.25 p.m. on the 1st Apirl 1990, a police inspector and a woman constable saw the first applicant use a key to open the door to Room 418, Block 15, Tsz Wan Shan Estate. They told him that they suspected that there were dangerous drugs inside the premises, and in his presence proceeded to carry out a search during the course of which they found that the top drawer of a four drawer cabinet and the middle drawer in a sofa style bed were both padlocked

3. The first applicant told the police that he did not have the keys to these padlocks.One of the officers then broke open the cabinet drawer and discovered 45 packets of heroin; two polythene bags bearing traces of heroin; two stored valued MTR tickets and a pile of white paper, both of which bore traces of heroin; a white plastic bag containing a bundle of polythene bags contaminated with heroin; a steel sieve and some Po Chai phials also contaminated with heroin; thirteen syringes; a pair of scissors; a paper cutter and a box of what was described as reclosable storage bags. Two keys found in the first applicant's possession fitted the main door and the metal grille respectively of the premises

4. Shortly afterwards a police constable brought the second applicant to the premises. He too was in possession of keys that were found to fit the main door and the metal grille. Two minutes later another police constable brought a man, one Choi Ying Keung, to the premises. He was found to be in possession of a key which fitted the padlock on the drawer under the bed. When the police opened the drawer they discovered 56 packets of heroin and a number of articles including syringes, paper cutters, a pair of scissors and a pile of polythene bags. There were also Po Chai phials, an MTR ticket and a pile of white paper, two steel sieves and two graters, all of which were contaminated with heroin.

5. In an unlocked drawer under the bed were a box containing an easy-seal machine and another box in which t.here was a set of scales. In an unlocked cushioned box seat the police found a steel sieve,three graters, a knife, and a MTR ticket. All these articles were contaminated with heroin. Also in the box seat were a paper cutter and a pair of scissors. A tenancy card relating to the premises and in the name of the first applicant was discovered in the drawer off a writing desk. The second applicant and Choi had $2,580 and $17,500 on their respective persons.

6. The first applicant made a statement under caution, that was received in evidence without challenge, in which he alleged that the drugs belonged to Choi and not to him, that he had given a key of the premises to Choi so that he could occasionally stay there overnight, that Choi had brought a man called Tau Ling to the premises, that he had seen Tau Ling inject himself with dangerous drugs there; that Choi had lent him money, that he had seen Choi place dangerous drugs in the cabinet drawer and that he had not reported the matter to fife police because he thought it would bring him trouble.

7. The police confronted the first applicant with a diary found in the premises in which there was an entry recorded by him and dated 4th January 1990 and which read, "They placed white powder in my home.".  When asked to whom the word "they" referred, the first applicant replied, "Choi Ying-Keung". In response to a further enquiry as to when Choi hail begun bringing drugs into his flat 110 said, "After writing this diary, I scolded him [Choi] .  He didn't come since then. It was not until thelatest month that he (Choi) put dangerous drugs in my place again."

8. In the course of his testimony at the trial the applicant expanded this explanation. He said that originally he had given Choi a key to the flat so that he could stay there, but that on the 4th January 1990 they had had an argument arising out an incident in which Choi had injected someone with drugs in his flat, that Choi had then departed leaving behind two pellets of drugs for fear that as it was night tine he might be stopped and searched, that Choi had returned the following day and, presumably, had collected the pellets because the applicant discovered they had gone. He agreed that had not asked Choi to return the key to the premises, and explained that he had made the diary entry to remind himself not to be lazy and to find a job. This explanation plainly had no relevance to the entry relating to drugs, but could be construed as being referable to another entry.

9. In March the two men met in a park. The applicant told Choi that he was in debt to a loan shark in the sum of $1500, whereupon Choi said that he would lend him $1500 as rent for allowing him, Choi, to return to the flat to live. In these circumstances and in view of Choi's assurance that he had been to China and had rid himself of his drug addiction, the applicant agreed to allow him to return. He explained that he permitted Choi to use the cabinet drawer and the middle drawer under the bed and that Choi subsequently installed a padlock on each of them because he had become annoyed that the applicant was wearing his clothes. He denied that he had a key to either drawer or that he knew or suspected what Choi had left in them. He admitted having seen the set of scales and the sealing machine, and explained that Choi had told him that he used them to weigh and seal packets of Chinese herbs for sale.

10. The second applicant testified that Choi had taken pity on him because he was homeless and had been sleeping in the street, and had told him that he cold stay in the 1st applicant's flat. Choi then handed him two keys, one for the main door and the other for the metal grille. He admitted that he is an addict and that he purchased No. 4 heroin from Choi and had injected it. According to him he had slept in the flat on more than ten occasions and would go there so that Choi could inject the heroin for him. He had seen Choi open the drawer under the bed, but not the one in the cabinet. He asserted that he did not know the first applicant until he went to the flat, and insisted that he was completely unaware that there were drugs there.

11. Choi, who was called as a witness by the 2nd applicant, supported his testimony. He added that the second applicant had asked him whether there were drugs in the flat and, when told that there were none, believed him and did riot enquire again. Choi denied that the drugs in the cabinet drawer belonged to him.  This, however, was contrary to the admission which he had made when he pleaded guilty at the beginning of the trial. He asserted that the padlock to the cabinet drawer had already been installed when he arrived at the flat, but admitted that he had fitted the padlock to the drawer under the bed. According to Choi the first applicant had sometimes assisted him to pack drugs by using the sealing machine. As to the $22,580 found on his person he said that $5,800 was his wages and that $15,000 had been given to him by his boss to buy zinc plates. He was cross-examined on a cautioned statement that he made to the police on arrest in which he had admitted that teh drugs in the cabinet drawer were his. His explanation for having made that admission was that the first applicant had asked him to make it. As for the $17,500 found on his person, he had come by that by selling drugs.

12. In her Reasons for Verdict the Deputy Judge said:

    "D1 and D2 were found only with keys to the premises and none to the cabinet drawer or the bed drawer. The Crown does not have to prove that fact to raise the presumption. The defendants cannot rely on that to rebut the presumption of possession and knowledge."

This formed the basis of the first ground of appeal advanced by Mr. Macrae on behalf of the first applicant a ground which was adopted in the course of argument by Mr. Jackson Poon who appeared for the 2nd applicant. The Deputy Judge warned herself that Choi was an accomplice and might therefore have had a purpose to serve in giving the evidence he did against the first applicant. In view of this possibility she decided to disregard his evidence in so far as it related to him. She found that the first applicant knew that the drugs were being stored on the premises and that he was paid for allowing this to be done. She was satisfied that the reference to drugs in his statement to the police related to the incident of 1st April 1990 and not, as he asserted at the trial, to the two pellets he said Choi had left at the flat on the night of their quarrel.

13. The deputy judge concluded that as the first applicant was the tenant of the flat it would be naive to think that he was unaware of what had been going on there. She was satisfied that he condoned the use of the premises for the storage of drugs and that on the evidence before her had not rebutted the presumptions of possession and knowledge. Indeed, she expressed herself to be satisfied beyond a reasonable doubt that the knew that the drugs were on the premises and that he was in possession of them for the purpose of unlawful trafficking.

14. With regard to the second applicant the deputy judge found that his explanation as to how he came into possession of the keys to the flat and the money found on his person was not credible. She did not believe either him or his employer as to the source of the money. The employer impressed her as evasive and inconsistent. Likewise she did not believed Choi. She formed the view that he was clearly trying to distance the second applicant from the drugs. In particular she rejected his testimony that although the second applicant had the keys to both doors to the flat he, Choi, only had the key to one of them. Since he was asserting that he was keeping drugs on the premises, this was an unlikely arrangement. Lastly, she found that both the second applicant and Choi were using as the flat as a store for drugs which they were selling.

15. Plainly the judge was in error in stating in her Reasons for Verdict that in order to rebut the presumptions of knowledge and possession, the defendants could not rely on the fact that neither of them was found in the possession of the keys to the padlocks on the drawers. We think that it is very likely that this was a merely a careless slip and that what she meant to say was that the defendant could not rely on that fact to prevent the presumptions arising by virtue of their possession or the keys to the premises. However, no where in the latter part of her Reasons for Verdict in which she considered the evidence for the express purpose of deciding whether the applicants had rebutted those presumptions, did she refer to their testimony concerning the keys to the padlocks securing the two drawers. Had she done so, and had she made it plain that she had come to the conclusion that, notwithstanding the absence of any positive evidence that they had keys to the padlocks on the drawers, the applicants had not rebutted the presumptions as to possession and knowledge, we would nave felt entirely justified in treating her manifestly inaccurate statement of law as nothing more than an unfortunate and unintentional aberration. Since, however, there was nothing in her reasoning which compels us to this conclusion, we find ourselves obliged to accept that statement at face value.

16. There was clearly ample evidence on which, independently of the presumptions, she could have convicted both of the applicants. But, bearing in mind that she focused her attention on the presumptions, we are not persuaded in the circumstances of this case that the verdicts were rendered safe by what in effect was a last line finding that she was satisfied beyond a reasonable doubt that the applicants were in possession of the drugs. We therefore grant the application, treat it as the hearing of the appeal, allow the appeal, quash the convictions and set aside the sentences.

17. After hearing submissions from counsel, the court ordered that both applicants be retried.