THE QUEEN v. TONG LEE PING

BETWEEN

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JUDGMENT

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McMullin, V.-P. :

1. This appellant appeals against his conviction for possession of dangerous drugs. He was originally charged with possession for the purpose of unlawful trafficking, the total quantum laid in the charge being 12.02 grammes of a mixture containing 1.03 grammes of salts of esters of morphine.

2. The trial took a somewhat unusual course. The facts on which the prosecution were relying arose from a police raid upon premises known as 71 Un Chau Street, 8th floor where a party of police on the 1st January, 1984 executed a dangerous drug general authorization.

3. The appellant occupied a cubicle in those premises. The cubicle was searched and a number of articles were discovered including a plastic basin and a plastic box. Inside the plastic box were discovered some packets which, on examination, were found to contain a quantity of dangerous drugs, and traces of dangerous drugs were discovered on the other articles.

4. The appellant was taken into custody and he made a statement. The Crown proposed to introduce it in evidence and the trial Magistrate adopted the alternative procedure in considering the voluntariness of the statement.

5. The prosecution witness, P.C. TAM Shui-wah, was questioned by the defendant both as to his evidence generally and as to that concerning the taking of the statement. Those questions concluded with the appellant saying, "I say nothing more just for the Court to investigate." At that point, the Court addressed the appellant in the following way :

"This case is brought 'as trafficking' because of the presumption that arises under Section 46 of the Dangerous Drugs Ordinance Cap. 134, that the possession of more than half a gramme of a mixture containing esters of morphine raises a presumption (rebuttable on a balance of probability) of trafficking. If your case is one of admission of possession but denial of trafficking (raised by the presumption) you may enter the witness box to give evidence in rebuttal of this presumption and the court may find only a Section 8 Dangerous Drugs Ordinance offence committed."

The reason for this intervention is not entirely clear. It may be that the Magistrate thought that the line of cross-examination indicated that the appellant was only challenging the allegation of trafficking. In fact the appellant seems to have challenged the evidence relating to the discovery of dangerous drugs as a whole. This explanation was clearly intended simply to apprise the appellant of the distinction between the offence of simple possession and possession for the purpose of trafficking but it has resulted in an unfortunate confusion notwithstanding that the purpose was probably to assist the appellant.

6. Immediately after he was so addressed the appellant said 'I admit possession'. Thereafter the enquiry under the "alternative procedure" was abandoned. The brief facts of the case were then handed up. The note on the record reads, "These are read and agreed." The facts as read and agreed contained the following information : "The defendant was found inside one of the cubicles and meanwhile exhibits A, B, C, D, E and F were placed on the floor next to the defendant."

7. Subsequently the defendant gave evidence and in the course of which he said, "I admit P1(a) in the room but not b, c, d and e."

8. Two points are made by Mr CHENG Huan on the appeal. Firstly, he says that the appellant was not informed by the Magistrate that he had not merely a choice between pleading guilty to possession as distinct from  pleading guilty to possession for the purpose of trafficking but that also he was not obliged to plead guilty at all. He reinforces this observation by referring to the fact that subsequently, nearly one month later, when sentence was being considered and the Drug Addiction  Treatment Centre Report had been procured and the Court had addressed to the defendant in relation to sentence, the defendant suddenly objected and said : ''You told me to admit it". Secondly Mr. CHENG Huan points out that the notation applied to the various exhibits is confusing and it is not clear, even assuming that the defendant was admitting to possession in some sense,  what he was referring to when he said he did not admit B, C, D, and E of P1A.

9. Mr. Macpherson who appears for the crown has helpfully suggested that the various exhibit numbers can be brought into alignment and he has endeavoured to do so by directing my attention to the Government Chemist's Certificate, listing the exhibits, which appears on Page 21 of the record, and to the evidence itself. That demonstration was satisfactory to some extent. It would appear that the defendant when he said "'I admit P1A in the room" was probably referring to a red plastic box which contained 4 packets and 2 polythene bags containing dangerous drugs. This constituted a part of the dangerous drugs seized in the raid, the total of which was over twelve grammes of the mixture. Mr. CHENG Huan suggests that the defendant at that point was merely saying that he knew that that item had been found in the room. Immediately afterwards the appellant said that P2 was in the room. P2 on the list of exhibits refers to a red basin containing dangerous drugs and a "cigarette bag" containing dangerous drugs. These Mr. Macpherson, I think I have adequately identified in the Government Chemist's Certificate as the items which in fact contained the major part of the dangerous drugs but the identity of P1(d) and( e) has never been established nor has that of item 7 referred to in the "Brief Facts".

10. ; The plea remains equivocal. Firstly, it is not clear what precisely the appellant was saying had been discovered by the police. Secondly, I am not satisfied that the defendant was made fully aware that the Magistrate was giving  him the choice of not admitting possession. By putting it to him that because there was a presumption of trafficking he could admit possession, as distinct from possession for the purpose of trafficking this may have caused the appellant to believe that the Magistrate thought he should plead to the lesser charge. No doubt that was never the intention but I think it cannot be said in these circumstances that justice was manifestly seen to have been done. The appeal is allowed, the conviction quashed and the sentence set aside.