THE QUEEN v. CHUI TONG-SUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 611 OF 1988

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J U D G M E N T

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1. In this matter the appellant was charged with posession of dangerous drugs for the purpose of unlawful trafficking. It is admitted under Section 65C of the Criminal Procedure Ordinance that the appellant was intercepted and searched by two uniformed police officers rear the junction of the Canton Road with Tung Kung Street at about 2320 hours on the 4th April 1988. After Exh. P1 was found in the right hand lower pocket, of his jacket he was, arrested for posession of dangerous drugs for the purpose of unlawful trafficking.

2. During enquiries at the police station the appellant said that Exh. P1 was for his own consumption. Exh. P1 was placed into a Government envelope Exh. D2 and taken for analysis and it eras admitted that the. Government Chemist Certificate Exh. P3 elated to Exh. PI and Exh. P3 confirmed that Exh. P1 consisted of two pockets totally containing 14.5 grammes of a mixture containing 0.79 grammes of salts of esters of morphine.

3. In his Statement of Findings the Magistrate set out the evidence of the appellant on page 15 of the appeal record as follows :

"In chief the Appellant said he was a driver and detailed his income and expenditure. He said he was a drug dependant and had bought P1, from a man whose name he didn't know, near a park in Shanghai Street shortly before his arrest, having in effect joined with some other addicts to purchase drugs. The appellant said he consumed by chasing the dragon, spent about $1,600 per month on drugs and said P1 would have lasted him about a week.

Cross examined he said he went to Shanghai Street on 4th April 1988 to purchase iten0for his daily use, He said he normally bought his drugs at Tsai Kok Tsui, but as he found out that right there were drugs for sale in the area where he was he joined with other people to buy drugs After obtaining his drugs he said he walked away, bought some cigarettes from a store and was then arrested. He said he consume chasing the dragon, would buy a packet of chocolate when he was going to cake drugs, would use the tinfoil from that to consume drugs and then discard that tinfoil and would sometimes use the tinfoil from a packet of cigarettes. He said he would divide his drugs for consumption simply by taking drugs for a his packet when he wanted to consume and making a rough approximation for each consumption. He denied his possession of P1 was for the purposes of unlawful trafficking."

The Magistrate pointed out that there were no defence witnesses and then went on to make his Findings of Fact as follows:

"(1)     The Appellant was in possession of P1 when intercepted in Canton Road near its junction with Tung Kun Street at about 2320 hours on 4th Aprs1 1988.

(2)     P1 was 2 plastic bags totally containing 14.50 grammes of mixture totally containing 0.79 grammes of salts of esters of morphine, a dangerous drug.

(3)     The nature, weight and content of P1 raised the presumption the Appellant's possession was for the purposes of unlawful trafficking therein.

(4) That presumption was not rebutted even upon a balance of probabilities on the evidence as a whole.

(5)    The Appellant possessed P1 for the purposes of unlawful trafficking therein."

4. Mr. Alexander Wong who appears for the Appellant has no complaint about the Statement of Findings so far.

5. The Magistrate then gave reasons for his decision in some detail on pages 17 to 20 of the appeal record and it is principally against these reasons for decision that the grounds of appeal are aimed, Ground (1) is in the following terms :

The Learned Trial Magistrate has erred in law in rejecting the appellant's account of his occupation income and expenditure - (i) by holding that the appellant's evidence lacked inherent credibility and that he appeared reluctant to descend into the particulars by reason of the fact that though claiming to be employed he did not give any worth while details about employment and there was a fact no independent confirmation of the employment or of his claimed wages (p. 18 of the appeal bundle) where in fact and in law the appellant is not required to substantiate the same in the absence of challenge"

6. And I think I can deal with Ground (2) at the same time, Ground (2) is :

"that the Learned Trial Magistrate his further erred in concluding that the appellant is evidence was no more than unsupported assertions and that his evidence lacked particulars and credibility : (i) by commenting the appellant did not particularise what items he wanted to buy arid why to buy at that time of the night and in that area; (ii) by commenting that there were far too many fortunate coincidences for that account to be credible (iii) by rejecting his evidence of buying a packet of chocolate end using the tin foil from that whenever the appellant wanted to consume drugs and (iv) by commenting that there was nothing to confirm the death of his parents, his medical condition or his claimed expenditure (all at page 18 of the appeal bundle) where in fact and in law all these matters do riot appear to have been successfully rebutted and/or challenge and/or contradicted and/or contrary being put in crossexamination nor was clarification being sought by the Bench."

7. Mr. Alexander Wong has elaborated on these gounds of appeal this morning and referred me to the parts of the record to which they refer.

8. I think that treating these two grounds together, one should lock to the passage which immediately follows the parts that had been referred to in the grounds of appeal and indeed I have been referred to it this morning by Mr. Stepen Wong-for the respondent and it reads:

"that I comment upon'8uch matters if, not to misapply or misinterpret the burden of proof remaining throughout on the Crown to porve guilt with certainty but to take account of practical matters going to credibility and the weight to be given to evidence. I simply did not find the appellant credible, his evidence did not pass examinationin-chief, let alone the test of crossexamination and I did not believe his account about Exh. P1 being for his own consumption,"

9. It seems clear to me from these remarks that the Magistrate did not in fact err in law in commenting on these matters. The degree of particularity in the contents of the witnesses evidence is a proper matter for consideration by a court in deciding whether that evidence is credible and true. The Magistrate was clearly aware of the respective burdens of proof or both the prosecution and the defence.

10. I pass to the third ground of appeal which is in the following terms :

"the Learned Trial Magistrate has erred in lava in failing to consider and or to consider adequately that all packets of dangerous drugs were eminently marketable and all could be passed easily from hand to hand and any quantity of dangerous drugs in excess of the amount specified in the action which' brings the statutory presumption into play could have in any event been further divided for consumption and were all capable of division into a. number of smaller dose depending on the size of each dose (p. 19 of the appeal bundle): (i ) in the premises the undisputed fact that the appellent had with two packets of dangerous drugs weighing 14.5 grammes apart from statutory presumption into play could not in any way further advance the Crown case,"

11. It appears that the Magistrate did give consideration to The Facts set out in this ground of appeal. At page 19, he expressly refers to the fact that the packets of dangerous drugs were eminently marketable, etc. Furthermore this ground seems to suggest that the undisputed fact that the appellant had two packets of dangerous drugs weighing 14.5 grammes was relevant for one purpose and for one purpose only and that was to bring the statutory presumption into play. That of course, with the greatest respect, cannot be right. Even if there was no presumption; that evidence would still advance the Crown case because of the quantity and the fact that it could be divided up into a whole lot of smaller packets and the greater the quantity the more likely it is that it was not for the consumption of the appellant,

12. It was a relevant matter in considering whether the accused in this case had rebutted the presumption and also whether the Crown had proved its case beyond reasonable doubt. I do not consider that R, v, Ho Muk Shui Mr. 1087/85 to which I have been referred by Alexander Hong really assists me at all in this respect. It is conceded that the Magistrate did not rely upon the presumption level in reaching his conclusion. Indeed, ground I really is the other way round. In ground 4 it is complained that the Magistrate has further erred in law in failing to direct himself or adequately that the presumption level is not a factor to be given any weight when arriving at a decision. If this means that in every case the Magistrate has to say to himself that the presumption. level is not a factor to be given any weight on arriving at a decision; then I cannot agree. In fact if it was required that, a magistrate or judge should say that, there would be few cases which would have been rightly determined over the years.

13. I have read the transcript of the record in this case and the Magistrate s finding He clearly did not believe the appellant's assertion that the drugs, were for his, own consumption and he was certain of  the defendant's guilt of the charge which he was facing. He applied the correct burden and standard of proof and are had the, advantage of seeing, appellant giving evidence. I can find no reason to hold that in those circumstances he was wrong in the decision at which he arrived. In the circumstances, I dismiss the appeal.