HKSAR v. CHAN PING SUM

CACC357/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 2002

(On appeal from DCCC 386 of 2002)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant was convicted on 11 July 2002 of one charge of trafficking in a dangerous drug, contrary to sections 4(1) and (3) of the Dangerous Drugs Ordinance, Cap.134 and of one charge of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap.212.

2. He was convicted after trial by Deputy Judge Jenkins in the District Court. On the 1st Charge, he was sentenced to five years' imprisonment and on the 2nd, three months' imprisonment, the sentences to be served concurrently. He now seeks leave to appeal both convictions.

3. The Deputy District Judge found that at about 10:30 p.m., on 21 January 2002, a police patrol, inside Lee Fat Building on Ap Lei Chau Main Street, found in a meter cupboard on the 7th floor of the building a plastic bag. In the bag was found a quantity of suspected drugs. Some packed in cigarette packets. The police examined the contents of the bag and then replaced it in the meter cupboard and kept watch.

4. At about 7:55 p.m., on 22 January 2002, the applicant was seen to open the door to the meter cupboard. He was seen to reach his hand into the cupboard, put his hand in the plastic bag and then put his hand in his hand-right trouser pocket.

5. He was told not to move, but he ran. He was pursued and subdued after a struggle. He was told that he was suspected of possession of a dangerous drug and was searched. In his right hand trouser pocket was found a cigarette packet containing suspected dangerous drugs. He was cautioned and said : "The drugs do not belong to me. I only went up to the 23rd floor to look for somebody."

6. The plastic bag was recovered from the meter cupboard. The whole of the drugs were analysed and found to be firstly, 656.40 grammes of a mixture containing 560.54 grammes of ketamine; secondly, 26 tablets and a fragment containing a total of 2.04 grammes of 3,4-methylenedioxymethamphetamine and, thirdly, 40 tablets containing a total of 5.61 grammes of 3,4-methylenedioxymethamphetamine. The second and third quantities of drugs, both being commonly known as ecstasy. The retail value of the ketamine was agreed to be between $196,920 and $229,740, and the ecstasy between $3,960 and $6,600.

7. The applicant testified that he went to the building to visit a woman who lived on the 23rd floor with a view to renting the rooftop floor from her in order to keep pigeons there. He had rented it from her before. On arriving at the 23rd floor, the lift doors did not open and as the lift went down he managed to stop it at the 11th floor. He decided to walk down to the ground floor, and at the stairs between the 7th and 5th floor came across two men whom he thought might be robbers. He ran, he was pursued and he was brought to the ground.

8. The men were police officers and one, he said, picked up a cigarette packet from the stairs saying the applicant had thrown it there. He was told to admit to ownership of the whole of the drugs. The packet was the packet in which drugs were found. He denied ownership of it and the rest of the drugs.

9. His defence was that he was framed up by the police. It was not given any weight by the Deputy District Judge.

10. The applicant called the occupant of the 23rd floor of the building. She testified that she let the roof to the applicant in 1997 to keep pigeons. She terminated the arrangement after six months. The applicant had contacted her after that asking to rent the roof but she had refused to rent it to him again.

11. The perfected grounds of appeal refer only to the conviction for trafficking in a dangerous drug. No reference is made to the 2nd Charge of which the applicant was convicted and this morning, Mr Ho has not addressed us in respect of that charge. It would seem that the applicant has no complaint in respect of that conviction.

12. The Deputy District Judge found as a fact that the applicant was in possession of the quantity of drugs in the meter cupboard and of the quantity found on him at his arrest. The evidence supporting that finding was the observation of a police officer that the applicant reached into the meter cupboard and put his hand into the plastic bag containing the drugs. At that point the applicant was in possession of that bag.

13. The Deputy District Judge did not refer to the presumptions available to him under the Dangerous Drugs Ordinance but found that there was sufficient direct evidence of the connection between the applicant and the bag of drugs to satisfy him that he was in possession of them. In any event, the possessions under section 47 of the Dangerous Drugs Ordinance were sufficient to raise prima facie proof of possession of the drugs and knowledge of the nature of those drugs.

14. The perfected grounds of appeal in the application take no issue with the findings of the Deputy District Judge to the point of possession by the applicant and his knowledge of the nature of the contents of the plastic bag. The only matter raised in the several grounds is that the Deputy District Judge was in error in finding either by presumption, inference or from the evidence that the applicant trafficked in the dangerous drugs.

15. The Deputy District Judge said this in his Reasons for Verdict :

" Trafficking in drugs includes dealing in or with drugs, or possession for the purpose of trafficking. I find that the defendant had effective custody and control of all the drugs in the Wing On bag and was in possession of them. I find that the only inference that can be drawn from the considerable quantities of ketamine and the tablets is that the defendant was trafficking in them. I am further satisfied that the defendant did know the nature of the drugs in question."

16. Mr Ho argues that there is no evidence that trafficking took place and that by drawing an inference of trafficking the Deputy District Judge was not drawing the only reasonable inference and was also, on one argument, reviving the presumption as to trafficking that was previously contained in the Dangerous Drugs Ordinance.

17. As to the second line of argument, there is nothing to suggest that the Deputy District Judge has revisited or revived or used in any manner any presumption as to trafficking. He has done no more than draw an inference open to him in the light of the quantity of drugs found as to the purpose for which the applicant had them.

18. It is common sense that for a large amount of drug, there can be no other reason for the possession than trafficking. For a smaller quantity of drugs there is an inference of simple possession or trafficking. In the case before us, the quantity of drug has a value of at least $200,000. It is clear that the value is far above the amount the usual addict in Hong Kong could or would store for his own use.

19. The applicant stored the drugs in a meter cupboard away from his home which is in Lei Tung Estate in Ap Lei Chau which suggests that it was not for his own consumption. He was also prepared to store drugs of a considerable value in a meter cupboard not under his control which, again, argues that the drugs were not for his own consumption. The only reasonable inference which could properly be drawn from those facts and the quantity of drugs based upon their value was that the applicant had possession of those dangerous drugs for the purpose of trafficking in them.

20. The application for leave to appeal against conviction is refused.