THE QUEEN v. CHAN CHUI LAP

Headnote

    Where the decision of a judge sitting alone that a presumption imposed by the Dangerous Drugs Ordinance has not been rebutted depends exclusively upon his impression of the defendant as a witness, an appellate court should not interfere merely because it feels that in the circumstances as they appear from the record it may itself have come to a different conclusion.

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 23rd of October last year, at sometime during the evening, the police paid a visit to 2002 Man Tai House in the Tsz Man Estate. When they knocked at the door, CHAN Chui Lap, the Defendant, was seen to rush to the toilet where he managed to dispose of a syringe and what else might have been in a red basin that he then picked up. When the police gained entry, they found a paper with traces of heroin near the door of the toilet and one packet. The Defendant admitted that they were his. He went further than that. He voluntarily told the police that he had another nine packets hidden away, which he then produced.

2. In due course he was charged with possession of dangerous drugs for the purpose of unlawful trafficking. He accepted, through his counsel, the technical evidence with regard to the dangerous drugs, that is the Government Chemist's certificates and so on, and the summary of facts which was much as we have just outlined.

3. He gave evidence that as a construction worker - he termed himself a "permanent casual" - he earned enough money to indulge his drug addiction and that the drugs produced to the police, and the one packet, were all for his own consumption. He explained that he purchased in bulk in order to obtain a discount and to lessen the chance of detection during the course of purchase. He said that the drugs in question represented a 20-day supply.

4. The thrust of the cross-examination was that he was not a regular worker, and therefore presumably would need to supplement his income by trafficking in dangerous drugs.

5. The judge below was not satisfied that the presumption of possession for the purposes of trafficking had been rebutted. The reason, which he gave at the time, was later reduced to writing:

"I observed Defendant giving evidence, on more than one occasion, there was some hesitancy. Of course, one must take into account a man's education or lack of education, this was not explored but he did not appear to be well educated. Also an addict may have difficulties in giving evidence. I take all these matters into account. In the event I have come to the conclusion that Defendant has completely failed to rebut the presumption."

6. Counsel who appears for the Defendant in the application for leave to appeal the conviction has queried what exactly the judge may have meant by that passage, but which we take to mean no more than, that having observed the Defendant giving his evidence, he did not believe that the Defendant was telling the truth with regard to the purpose of the dangerous drugs.

7. This Court has said more than once, and recently, that there are occasions when it is impossible for a judge to predicate in detail why he does not believe a defendant who gives evidence to rebut a presumption imposed by the Dangerous Drugs Ordinance. That is where his conclusion depends exclusively upon the impression made upon him by a defendant when in the witness box. In that case this Court will not interfere merely because it feels that in the circumstances as they appear from the record it may itself have come to a different conclusion. That is a basic principle which should be applied by all who sit in an appellate capacity. We mention this because our attention has been drawn to several instances where judges sitting alone on appeal from magistrates' decisions have expressed different views.

8. In the present instance there is only one matter which has given us pause for concern, namely, that there is no express mention of the point raised by the Defendant in his homemade grounds of appeal, although not originally pursued by counsel in the application today, that a man as conversant as he with the drug laws of this territory would be highly unlikely voluntarily to disclose to the police the further nine packets if in fact he did have them in his possession by way of intended trade. But, as Mr. Cross, who appears for the Attorney, has observed, this suggestion was not made at the trial below, and had it been, further evidence may well have disposed of it completely.

9. In the circumstances we are not persuaded that the conviction was unsafe or unsatisfactory. The application must be refused.