THE QUEEN v. LAM PAK HANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 59 OF 1990

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JUDGMENT

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Fuad, V.-P.:

1. The appellant, Lam Pak Hang, was convicted by Mr. S.J. Geiser in the Magistrates Court on 4th December last year after a trial of the offence of possessing dangerous drugs for the purpose of unlawful trafficking contrary to the Dangerous Drugs Ordinance. The amount involved was 8.35 grammes of a mixture containing 0.41 grammes of salts of esters of morphine. He was sentenced to 2 years' imprisonment and now appeals against his conviction only.

2. The learned magistrate reviewed the evidence briefly in his Statement of Findings and noted that two police officers had given evidence for the prosecution that on 2nd October 1969 at about 9:30 in the morning they were on duty on patrol in plain clothes outside the Pak Tin Estate where they saw the appellant acting, as they put it, suspiciously. After they stopped him and produced their warrant cards, the first police officer searched the appellant and found a transparent bag containing white powder in his left trousers pocket and the appellant was arrested.

3. The magistrate said that both these witnesses had given their evidence in a straightforward and convincing way and that he could therefore rely upon them. The magistrate mentions the evidence of the Dangerous Drugs Police Officer to whose testimony I will presently return. The magistrate recorded that he found as a fact, and beyond all reasonable doubt, that the white powder seized from the appellant consisted of dangerous drugs and that the Government Chemist's Certificate admitted in evidence related to the drugs that were in fact found on the appellant on the day of arrest.

4. The magistrate noted that there had been a submission of no case to answer which had been overruled whereupon the appellant had elected to give evidence in his defence. He said that having listened to the appellant and observed his demeanour he had come to the conclusion that he was not a witness of truth. He did not believe his account to the effect that the police had framed him. The magistrate then went on to say:

"Having found that the defendant was in possession of the dangerous drugs at the relevant time, in view of the quantity, I found that the evidential presumption under Section 46 Chapter 134 to come into operation. The defendant, having denied possession, was unable to rebut the presumption and I therefore found that the defendant did have the drugs on him for the purpose of unlawful trafficking."

5. Before turning to the grounds of appeal, I would mention that the first police officer had stated that when the appellant was arrested, and after he had been cautioned, he had said words to this effect "An Sir, give me a chance, I have just had an operation so I am taking dangerous drugs to kill the pain." The second police officer concerned gave much the same evidence about what that the appellant had said.

6. It is also necessary to note that during the course of the evidence the appellant himself gave, he said that he had been stopped by the police officers and at the time of his arrest he was in pain and was covering his abdomen with his hands. He intended to go to a building he mentioned to buy a bottle of water. He was in a hurry to get there because he had two tablets in his mouth and he was going to use the water to, as he put it, digest the tablets. He was stopped by two police officers who grabbed him by the neck. He was told that they suspected him to be in possession of dangerous drugs but he swore that no suspected dangerous drugs was found on him. He denied having said "Ah Sir, give me a chance ...." but said that he had told the police officers that he had an operation and that he had just taken tablets and he was on his way to buy a bottle of water. He also denied saying that he was taking dangerous drugs to kill the pain. He pointed out that he had been a police officer for 24 years himself and he was aware what the consequences were of admitting possession. Even if he had been in possession of dangerous drugs he would not have admitted it.

7. The first ground of appeal argued by Mr. Grounds on behalf of the appellant (who was represented by a solicitor before the magistrate) was that there had been a misdirection in the passage in the Statement of Findings that I have read where the magistrate referred to the presumption under section 46 of the Dangerous Drugs Ordinance. It was, he said, the duty of the magistrate to look for any possible defence that existed on the evidence regardless of whether the defence had been relied on by the appellant or not. He cited Kachikwu (1968) 52 Cr.App.R. 538 for this proposition.

8. Mr. Grounds also submitted that it was settled law that once the presumption of trafficking in section 46 of the Ordinance came to operation,  it could be rebutted by evidence from the Crown's case as well as by evidence from the defence case. He suggested that the magistrate had failed to direct himself properly, and had indeed misdirected himself, by saying that having denied possession, the appellant was unable to rebut the presumption. For that proposition, he relied upon the unreported decision of Duffy, J. in The Queen v. Wong Hing Mag.Cr.App. No. 1792 of 1988, a judgment given on 6th April last year. In that case the appellant had been found in his own home with what turned out to be dangerous drugs and when cautioned he was alleged to have said "Ah Sir, give me a chance, it is for my own consumption, not for trafficking." But in his evidence before the magistrate the appellant had denied that the drugs were his. In his Statement of Findings the magistrate had recorded:

"The appellant did not try to rebut the presumption for the purpose of unlawful trafficking. I was left in no doubt that he was guilty of the charge of possession of dangerous drugs for the purpose of unlawful trafficking."

9. Mr. Grounds who appeared for the appellant in that case, too, submitted to Duffy, J. that the trial magistrate had failed to direct himself that the presumption set out in section 46 of the Ordinance could be rebutted by evidence in the Crown's case and he raised a number of points that he said were in favour of the appellant which the magistrate in view of the line he had taken, had not considered. There was a small quantity of dangerous drugs; the drugs were contained in a single packet; the appellant under caution had maintained that the drugs were for his own consumption; the Crown had not disputed that the appellant was in his own home when he was found with the drugs, and the appellant had been found in possession of apparatus fit and intended for the use of smoking dangerous drugs.

10. Duffy, J. said that it seemed to him that there was merit in these arguments and that certainly there was the absence in the findings by the magistrate of an appreciation that the presumption could be rebutted having regard only to the Crown's evidence. The judge added:

"Indeed, I feel that the matters raised by Mr. Grounds as factors to be considered by the learned magistrate when considering whether or not the drugs were for the appellant's own consumption were matters which night well have persuaded him to convict the appellant of a charge of only simple possession."

11. He substituted a conviction for simple possession and allowed the appeal to that extent, reducing the sentence.

12. Every case will depend on its own facts. I have already set out what the police officers said the appellant told them on his arrest, and the evidence he gave in Court. Of course it is settled law that it is the duty of trial judge or magistrate to consider whether any defence which has not been raised by the defendant is nevertheless disclosed by the evidence led in the case, and it must also be plain that the presumption provided for in section 46 of the Ordinance can be rebutted by any admissible evidence, from whatever source. However, section 46 states that any person who is proved to have had in his possession more than a certain quantity of drugs, which pre-condition is satisfied in this case:

"shall, until the contrary is proved, be presumed to have had such dangerous drugs in his possession for the purpose of trafficking therein".

13. It is well established that the quantum of proof is the civil burden of the balance of probabilities. In this case I do not see how the matters relied upon by Mr. Grounds can possibly be said to begin to rebut the presumption contained in section 46 of the Ordinance. The evidence regarding what the appellant said upon his arrest can only be relevant to show his reaction at the time, and it must be noted that he was at pains to deny the version given by the police officers of the words they said tie had spoken. The evidence necessary to establish the presumption, as I have said, may come from any source but there was simply no evidence the appellant could have relied upon in this case and to the extent that my decision departs from the approach taken by Duffy, J. in the Wong Hing case, I say with very great respect to him, that I have reached my own conclusions without the smallest hesitation.

14. Mr. Grounds also submits that the evidence concerning the handling of the drugs was incomplete and unsatisfactory because there was no evidence of what the relevant police officer had done with the white powder between 2nd October and 4th October 1989. The police officer concerned was a dangerous drugs police constable, PC5427, who gave evidence that he had been handed a packet of "white powder" by PC23347 on 2nd October 1989 in the presence of the appellant. He had put the powder into an envelope and sealed in front of the appellant and PC23347 and told the appellant that it would be sent to the Government laboratory. He had then signed on the envelope as had the appellant and PC23347. He identified the envelope and the signatures before the magistrate and said that on 4th October 1989 he had sent it to the Government Chemist for analysis and on 17th October he had got it back. He was not cross-examined.

15. In my judgment the submissions made by Mr. Grounds on this point are quite unrealistic. The evidence of PC5427 coupled with the evidence of PC23347, unchallenged as it was, was quite sufficient to establish that the powder which turned out to be dangerous drugs seized from the appellant was the powder that was examined by Government Chemist and produced in Court before the magistrate.

16. The appeal must be dismissed.