THE QUEEN v. WAN KWONG YAU

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JUDGMENT

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Hon. Yang, C.J.:

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

2. The case for the Crown was that on the 2nd February 1989 a party of police intercepted the applicant and one Wong Wing when they entered 125, Lai Chi Kok Road, 14th floor. On being searched, the applicant was found to have in his possession the keys to a locked room inside the premises. There, in an unlocked cupboard the police found 1924.22 grammes of a mixture containing 116.93 grammes of salts of ester of morphine, together with paraphernalia which might be used for packaging drugs. The applicant's fingerprint was found on a bag containing the drugs, and his palmprint was found on a newspaper in the room.

3. There was no dispute that the keys were in the applicant's possession. The only difference between the prosecution and defence on that issue was that the police evidence was that the keys were found in his right hand, and the applicant's evidence was that he had the keys but they fell onto the floor during his brief struggle with the police.

4. A civilian witness for the prosecution, Yen Kam-shing, said in evidence that, having rented the room in question and retained the keys to the room from the 25th to the 30th January during which time he and his friend Chen Kwong-man went there to smoke drugs, he gave the keys to the applicant and thereafter had no further dealings with the room.

5. Clearly, this is a case in which the presumption in Sec. 47(1) of the Dangerous Drugs Ordinance applies.

6. The applicant gave evidence that he did not, possess the drugs found in the room, did not know what was found were drugs, and had never visited the room until he was intercepted by the police there on the 2nd February. The gist of his evidence was that his friend Wong Wing wished to rent a room and he consulted Yen whom he knew had a room to let. Yen gave the applicant the key to the room and he went to view it with Wong Wing. He also said that his fingerprint got onto the bag because he examined it when the police showed it to him. His palmprint got onto the newspaper on the floor when he put his hand on the floor to get up.

7. Yen was an admitted drug addict. He occasionally worked at a noodle stall. His addiction cost him some $2,000 a month and he had a criminal record, which was disclosed to the jury. Also, at an earlier trial (which was a murder trial), Yen gave  evidence that he was a drug trafficker. This too was known to the jury.

8. Counsel for the applicant advanced five grounds of appeal. The first ground of appeal is that the judge failed to draw the jury's attention to the "mass of circumstantial evidence linking Yen to the room in which the drugs were found". Secondly, the judge was said to have failed to draw the jury's attention to "disturbing inconsistencies in the testimony of Yen Kam-shing". The third ground complains that it was a material misdirection to tell the jury that there was no evidence before them that they (Yen and Chen) are traffickers. The fourth ground is that the judge erred in failing to give an accomplice direction to the jury. Finally, and in particular, that the direction to the jury "when you consider the evidence of the Crown and the defence I must warn you that you may not compare the two" was, in the circumstances, a material misdirection. As a roll up ground it is suggested that the conviction falls within the "lurking doubt" category.

9. Our attention was drawn to the evidence linking Yen to the room and the drugs. In our view the judge dealt with the matter adequately. He referred to Yen's addiction, the suggestion made on behalf of the defence that Yen and Chen were traffickers, that Yen had rented the room and used it to smoke drugs. The evidence occupied two half-days and was straightforward. The judge was not obliged to give details of all the circumstantial evidence.

10. We were also referred to a number of alleged inconsistencies in Yen's evidence. The learned judge did not enumerate these when he summed-up to the jury, but he did alert them to the discrepancies in the evidence of both Yen and Chen, and he reminded them of defence counsel's final address touching upon those inconsistencies. For a simple case such as the present one, the directions to the jury were adequate.

11. On the third ground of appeal, the learned judge was quite correct in observing that there was no evidence Yen and Chen were traffickers. Read in its proper context, the judge must be referring to the drugs which formed the subject matter of the trial and not to the possibility that Yen and Chen were traffickers in relation to some other drugs. Whilst the judge might have phrased this part of the summing up more felicitously, we are unable to say that the jury might have been misled.

12. The fourth ground of appeal is in our view misconceived. There was no evidence that Yen was an accomplice involved in the drugs in question. The Court was not dealing with speculation but with evidence.

13. Again the direction not to "compare" the evidence of the crown and the defence must be placed in context. The jury had  been told in explicit terms that the burden of proof rested upon the crown. Immediately after the passage complained of, the jury were directed that they must look at all the evidence and that they should not, by comparison, decide "what you believe". In any event the complained of passage directly related to the issue whether the keys were in the applicant's hand or whether they had fallen from his person to the ground. We do not consider there to have been any misdirection.

14. Lastly, the evidence before the jury if accepted by them was sufficient for them to find the applicant guilty. This is not a case in which we entertain any lurking doubt.

15. The application is accordingly dismissed.