THE QUEEN v. CHAN PING AND ANOTHER

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JUDGMENT

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Macdougall, J.:

1. The applicants were convicted after a contested trial at the Victoria District Court of being in possession of 21.24 grams of a mixture containing 2.41 grams of salts of esters of morphine for the purpose of unlawful trafficking. They were both sentenced to 2½ years imprisonment. They seek leave to appeal against both their convictions and sentences. The first applicant was also convicted of wounding with intent to do grievous bodily harm. He now abandons his application for leave to appeal against that conviction.

2. Evidence was given by the prosecution that police officers who had been lying in ambush outside a flat at 5th floor, 63 Hennessy Road, Wanchai intercepted the 1st applicant as he was leaving the premises with a dog. They informed him that they intended to conduct a search of the flat for dangerous drugs. On being asked which bedroom he occupied, he replied that he slept in the middle bedroom with his wife. The police then entered that room and found the 2nd applicant, a female, asleep on the bed.

3. After conducting a search in the more obvious places in the bedroom, the police moved a wardrobe away from its position against a wall and discovered two polythene packets of drugs wrapped in paper. On further investigation, they found two other packets of drugs similarly wrapped, one between an electric socket and the wall behind the wardrobe and the other in a ventilation hole likewise concealed by the wardrobe.

4. The 1st applicant was found to be in possession of a key to the main gate to the building and to a key to each of the two iron grille doors which secured the entrance to the premises. However, he did not have on his person a key to the wooden door which it appears was located between the two iron grille doors.

5. Initially, Mr. Westbrook who appears for both applicants, submitted that the conviction of the 1st applicant was unsafe and unsatisfactory in that the District Judge failed to place any or any sufficient weight on the fact that the 1st applicant did not possess a key to the wooden door and that accordingly the presumption under section 47 of the Dangerous Drugs Ordinance did not apply.

6. However, since there was no evidence that the wooden door had been locked or even closed at the time of the police raid, and since the 1st applicant had admitted that he occupied the bedroom in which the drugs were found, it became plain to Mr. Westbrook that there was no point in pursuing this ground of appeal.

7. There being no other grounds of appeal against conviction, the 1st applicant's application for leave to appeal is refused.

8. I turn to a consideration of the grounds of appeal advanced on behalf of the 2nd applicant. On analysis, it is clear that in fact the several grounds set out in the perfected grounds of appeal can be reduced to one ground, namely, that the judge wrongly ruled that there was a case to answer.

9. In this ruling, the judge referred to the evidence that the 2nd applicant had been found asleep on the only bed in the room in which the drugs had been found, that the 1st applicant had admitted that he occupied that bedroom with his wife, the 2nd applicant, that a life insurance policy in the name of LEE Koon-ho had been found on a vanity table adjacent to the bed, and that forming part of that policy was an application form dated 28th December 1981 at the bottom of which was a declaration purporting to be signed by one LEE Koon-ho stating, inter alia, that her address at that date was 5th floor, 63 Hennessy Road, Wanchai. The signed declaration also acknowledged that the declarant was born on 8th August 1926.

10. The 2nd applicant's name is LEE Koon-ho, the address of the premises in which she was found is 5th floor, 63 Hennessy Road, Wanchai and the declared date of birth is consistent with her apparent age.

11. Mr. Westbrook contends that the admission made by the 1st applicant that the 2nd applicant was his wife and that he slept in that bedroom with her is not evidence against the 2nd applicant. I agree.

12. He further contends that since there was no formal proof that the signature at the foot of the declaration of the application form in the policy was that of the 2nd applicant, the admission that the signatory lived at that address is inadmissible against the 2nd applicant, but that if it is admissible, it is of little probative value.

13. In my view, notwithstanding the judge's reference to the admission made by the 1st applicant that was inadmissible against the 2nd applicant, there was ample circumstantial evidence that the 2nd applicant was at least in joint possession, custody or control of the bedroom.

14. She had been found not merely present in that room but actually asleep in the only bed there. Moreover, the finding of the insurance policy in her name on a vanity table adjacent to the bed reinforces her connexion with the room.

15. I am satisfied that the circumstances under which the policy was found constitute strong evidence that it was in her possession and that the signature in her name to the declaration in the application form was hers. That being so, the admission in that form that her address on 28th December 1981 was 5th floor, 63 Hennessy Road, Wanchai is admissible as evidence against her.

16. In the absence of evidence to the contrary, it is entirely reasonable to infer from this that she had been residing at that address for at least four years and that her presence there on the day of the police raid was consistent with her being in joint possession, custody or control of the bedroom. Indeed, it is my view that to come to a contrary conclusion would be an affront to common sense.

17. In Thompson v The King [1918] 221, Lord Atkinson said at page 226:-

"If a document be found on the person of, or in the room occupied by an accused person bearing directly on the crime charged against him, but undated, and there be no evidence to show when it came into his possession, or when it was written or printed, it might be urged, as it was urged in this case, that it might have come into his possession when he was young and foolish, and that, even if his character was then ever so depraved or criminal as the possession of the document might indicate, he may have long since repented and reformed and become of blameless life and character. All that may be perfectly true, but that possibly goes, I think to the weight of the evidence not to its admissibility."

18. In R v Horne Tooke (1794) 25 St T r 1, Eyre LCJ had this to say at page 120:

"But all papers found in the possession of a man are, prima facie, evidence against him, if the contents have application to the subject under consideration."

19. I think that the position was accurately summarised by the Supreme Court of Newfoundland sitting in banco in Reg. v Partridge (1974) 15 CCC (2d) 434 at 435:

"The general rule is that documents found in the possession of an accused are admissible against him as original (circumstantial) evidence to show his knowledge of their contents or his connection with the transactions to which they relate. They will also be receivable against him as admission to prove the truth of their contents if he has on any way recognized, adopted or acted upon them."

20. Thus there was, in my opinion, ample evidence from which a jury might properly conclude that the 2nd applicant was at least n joint possession, custody or control of the bedroom in which the rugs were found. The District Judge was therefore correct in druling that there was a case to answer against her.

21. On giving evidence she testified that when the police conducted their search of the bedroom, she observed that packets which he police alleged were dangerous drugs had fallen from an officer's arm, and that the drugs had been planted in the bedroom by the police. She admitted that she had been residing in the premises for 10 years and that had there been drugs in the bedroom, she would have known of their presence because she was responsible for cleaning the room.

22. Counsel concedes that once it is accepted that the judge correctly ruled against the submission of no case to answer, he was justified on the evidence before him in convicting the 2nd applicant of being in possession of the drugs for the purpose of trafficking.

23. I would therefore dismiss her application for leave to appeal against conviction.

Kempster, J.A.:

24. I have had the advantage of reading in draft the judgment of Macdougall J. with all of which I respectfully agree save, with reference to the submission of "no case" as against the second applicant, Lee Koon-ho, for his reliance upon the terms of the life-insurance policy discovered on a vanity table in the room where, on 1st February, 1986, she was found asleep. I accept that the document was properly admitted in evidence as part of the surrounding circumstances. R v Podmore ^(1).

25. Its terms incorporated a statement to the effect that the signatory, having the same name as the second applicant, had been born on 8th August, 1926 and was living at the relevant address on 28th December, 1981. The signature was not identified or subjected to comparison pursuant to Section 17 of the Evidence Ordinance. It might have been made by a third party without the second applicant's knowledge or consent. Judge Cameron made no hazard as to the second applicant's age and I am in no position so to do. Further, he gave no reasons for his finding that the statement had been made by her. Had it so been made it would certainly constitute a clear admission as to her address on the date given and the inference could reasonably have been drawn that she had not moved away. It would not follow that she was the sole or a joint occupier.

26. Could the document reasonably have been regarded as in her possession merely by reason of its terms and of its proximity to the place where she was sleeping in premises at which another female was also asleep in a different bedroom and the first applicant and two other males ere also present? It was not suggested that anything else found in the room was her property or in her possession.

27. I pose this question because papers found in premises occupied by an accused or otherwise in his possession constitute prima facie evidence against him if the contents have application to the subject under consideration. R v Horne Tooke ⁽²⁾ (a case of High Treason). For example materials so found or possessed are admissible to prove identity in the context of alleged abnormal sexual proclivity. Thompson v R ⁽³⁾. In the instant case to assert that the policy was found in a room occupied by the second applicant or was in her possession is to beg the question though the statement incorporated had a statutory application to the possession of dangerous drugs for the purpose of unlawful trafficking.

28. I am not persuaded that possession of the policy was to be attributed to the second applicant in the circumstances outlined or, if I am wrong, that without proof of the handwriting and in a criminal case it constituted a prima facie admission by her as to her address in 1981 from which an inference of occupation of premises in 1986 might be drawn.

29. If my approach is correct the only material evidence against the second applicant was that she was found asleep on the only bed in the room where the dangerous drugs were found and the only remaining question is whether or not that evidence showed that she had sole or joint possession, custody or control of that room and, therefore, a case to answer on the charge of possessing such drugs by reason of the terms of Section 47(1) of the Dangerous Drugs Ordinance. Perhaps in order to avoid the arcane deliberations found in Warner v Metropolitan Police Commissioner ⁽⁴⁾, that section provides:

"Any person who is proved to have had in his possession or custody or under his control -

(c) - the part of any place or premises in which a dangerous drug is found - shall, unless the contrary is proved, be presumed to have had such drug in his possession."

30. While accepting that "the English law has never worked out a completely logical and exhaustive definition of possession [per Lord Jowitt in U.S.A. & Republic of France v Dollfus Mieg Et. Cie S.A. and Bank of England ⁽⁵⁾] I am of the opinion that a person may be held to be in possession of land, as of a chattel, if sufficient evidence is forthcoming to demonstrate both physical control over it, in the sense of ability to use as may be desired, within the parameters of practicality and the law, and to exclude others, and of an intention to exercise such control. Once possession has been acquired the ability and intention to retain that possession will readily be inferred. Possession is not lost, for example, while the possessor is asleep. Possession is not to be equated with use or enjoyment. A warehouseman possesses goods in his godown albeit he does not use or enjoy them.

31. The expression "custody" has historically been applied to servants who, as an incident of status, do not possess their master's chattels, though under their physical control, while they are in his house. The legal position of guests is similar. In its wider and more general application it means physical control which does not, of necessity, involve knowledge. R v Woodman ⁽⁶⁾. The disjunctive use in the ordinance of the further words - or under his control emphasises that the relevant presumption may arise even in the absence of custody.

32. The fact that a person is asleep on the only bed in a room does not, in my opinion, demonstrate that such person is the sole or joint occupier of that room, whether as tenant, licensee, mortgagee, or trespasser, so as to be deemed in possession of it. He or she may equally well be a visitor or a member of the occupier's family. No more does it suffice to establish even control, let alone custody, of the room.

33. In the circumstances I find that the prosecution had failed to establish a prima facie case against the second applicant whether by reason of statutory presumption or otherwise at the time submission was made. I would allow her application, treat this as the hearing of her appeal, quash her conviction and set aside her sentence

(1)    [1931] 32 Cr. App. R. 36

(2)    [1794] 25 State Tr. 1 at pp. 120-121

(3)    (1918) A.C. 221

(4)    (1969) 2 A.C. 256

(5)    (1952) A.C. 582 at p. 605

(6)    1974 QB 254

Sir Alan Huggins, V.-P.:

34. I, too, have difficulty in upholding the conviction of the wife. The question is whether there was at the close of the prosecution case sufficient evidence to justify the judge's conclusion that the presumption under s.25 might arise: it could not be disputed that there was sufficient evidence at the end of the trial. The presumption rested upon a finding that she was in possession, custody or control of the room in which she was found. The burden was on the prosecution to prove that foundation beyond any reasonable doubt, and it is important that the foundation of any statutory presumption in a criminal case shall be so established: relaxation of that rule can lead to gross injustice.

35. I cannot accept that the mere presence of a person in a room in which something is found justifies a finding that that person is in possession, custody or control of the room. The fact that the person is asleep in a bed in the room adds little, if anything. What the prosecution relies upon here is the discovery, in the same room, of an insurance policy which was made an exhibit in the court below but which was not included in the appeal record. We understand that it was a life policy taken out in 19 and that, forming part of it, was a proposal form apparently signed with the same name as that of the wife and giving the address of the assured as that of this flat. It is argued that the circumstances were such that the judge was entitled to infer that the signature was in truth that of the wife, although there was no direct evidence to that effect, because it would he too great a coincidence that such a policy should be found in that room if it were someone else's policy. If that be sound, I accept that the policy would constitute evidence which, combined with the other evidence could support a finding of possession, custody or control of the room, but one must not beg the question by assuming that there was evidence that the room was in the wife's possession, custody or control.

36. I do not think that the signature has been sufficiently proved. Even were this a civil case, and the degree of proof required that of a balance of probabilities, it would be arguable whether there was enough evidence to transfer the evidential burden and therefore to call for an explanation by the defendant: I am certainly not persuaded that the evidence was enough in a criminal case to raise the presumptions.

37. Accordingly I would allow the appeal of the wife. That of the husband must be dismissed for the reasons giver by Macdougall, J.