THE QUEEN v. CHENG PING TONG

IN THE COURT OF APPEAL

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JUDGMENT

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Barker, J. A.:

1. This is an application for leave to appeal. against a conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The evidence was that on the 9th September, 1984 the police, in the evening of that day, went to the Jordan Billiard House in Jordan Road in Kowloon. They had, as their target, the applicant, CHENG Ping-tong, they searched him and they found on him a bunch of keys. One of the keys which was exhibit P2A opened locker No. 6 and in locker No. 6 a quantity of dangerous drugs was found in four polythene bags wrapped in newspaper. In those circumstances, the presumptions under the Dangerous Drugs Ordinance arose against the defendant. The defendant gave evidence himself and he said that although he occasionally used locker No. 6 to store a spare cue, he was not the registered owner of locker No. 6 but that he was the registered owner of locker No. 59. According to one police officer another of the keys on the bunch exhibit P2B was tried in locker 59. and that police officer failed to open it. It is to be observed that the defendant himself was never asked to try the key and it was the police evidence that locker No. 59 was in fact opened by a key obtained from another customer in the billiard room at that time and locker No. 59 contained nothing of note.

3. The judge in his findings came to the conclusion that the defendant had not rebutted the presumptions and he therefore convicted. But in his reasons lie appears to have been in error. He said:

"The defendant appears to me to be a vague and unreliable witness. Apart from the partiuclars he gave in Court he told me nothing further about the said Li and Lam (they were two people who had been owners of locker No. 6) except that they were both captains in certain ballrooms."

That was the example he gave of the defendant being vague and unreliable. But when one looks into the evidence; one finds that the defendant answered every question that was asked of him about Li and Lam. He was never asked anything more about their being captains in ballroom. He was never asked, for example, what ballrooms they were captains in, what was their address or anything of that nature. He answered what was required of him. The judge went on:

"Granting that there was no evidence as to when the defendant last used locker No. 6 nor the hour at which he came to the Billiard Room on September 9th the hard fact remains that he had the key to locker No. 6 in which drugs of not insignificant quantity were found and that at the time of such finding the defendant was present thereat."

Once again that was a mistake on the part of the judge because there was evidence as to when the defendant last used the locker; for the defendant himself had said that the last occasion he used locker No. 6 was two weeks prior to the arrest. Of course it may be that the judge did not accept that piece of evidence, but he did not say so. And then the judgment goes on:

"It is difficult to perceive that anyone who owned the drugs or who was in remote or ultimate control of it would run the risk of the presence of the defendant therewith the key Exh. P2A for locker No. 6 hence access to the drugs if the defendant. was not entrusted with either joint or immediate possession, control or custody of the drugs."

But that is an argument which works both ways. It was accepted by the judge that at least four other people had a key to locker No. 6 and it is difficult to understand how the defendant with knowledge that four other people had keys to locker No. 6 would be foolish enough to put the drugs there. It is also to be observed that although the registered occupants or owner of locker No. 6 was a Mr. LAM Kwai-hoi, and there were details of Mr. Lam's identity card, address and telephone number, the police made no enquiries of Mr. Lam whatsoever nor indeed did they make any enquiries of the other key holders to locker No. 6.

4. For these reasons we are bound to say and indeed in fairness Mr. Callaghan, who appeared for the prosecution, conceded this much, that this conviction cannot stand. We find it unsafe and unsatisfactory and therefore we grant leave to appeal against conviction, we treat the hearing of the application as the hearing of the appeal itself, we allow the appeal and set aside the conviction and the sentence.