CHAN KIN-CHIM and Another v. R.

IN THE COURT OF APPEAL

1992 No. 138
(Criminal)

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J U D G M E N T

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Power, J.A. :

1. This is the judgment of the Court.

2. The applicants were charged in one charge with possession of a dangerous drug for the purpose of unlawful trafficking therein which particularized that on 29th July 1991, inside 4th floor, No.24A Tai Nan Street, Mongkok, Kowloon, they had in their possession a dangerous drug, namely 28.68 grammes of a mixture containing 10.71 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. They faced a second charge of possession of apparatus fit and intended for smoking a dangerous drug which particularized that on the same day and at the same place they had in their possession tinfoils, match box covers and plastic bags fit and intended for smoking a dangerous drug, namely salts of esters of morphine. The 1st applicant pleaded not guilty to both charges and the 2nd applicant pleaded not guilty to the 1st charge and guilty to the 2nd. They were convicted after trial in the District Court before Judge C.B. Chan on the 1st charge and the 1st applicant was found not guilty on the 2nd charge. They were each sentenced to three and a half year's imprisonment on the 1st charge. The 2nd applicant was sentenced to two months concurrent on the 2nd charge. They now appeal against the conviction on the 1st charge being represented by Miss Draycott for the 1st applicant and Mr. Westbrook for the 2nd applicant.

3. As the appeals turn upon questions of fact it is necessary to examine the evidence with care. The real thrust of the appeals is that the evidence was insufficient to warrant a conviction.

4. An Inspector Dunn gave evidence that before knocking on the door of the flat he had heard a chopping sound. He said that when the door opened the 1st and 2nd applicants were in the room and that the 1st applicant was nearer to the door. On the floor on a plastic shopping bag there was a chopper, a small domestic strainer, and what the trial judge described as "3 piles of dangerous drugs". In fact photograph No. 9 shows that 0.8 gramme of a mixture was on a small piece of paper (Exh. 9), 15.9 grammes of a mixture was in a small plastic bag (Exh.10), and 10.11 grammes of a mixture (Exh. 11) was on the plastic shopping bag itself. Exhibit 10 was made up of granules, Exh.9 of smaller granules and Exh. 11 was in power form. It appears that the granules were being chopped and sifted at the time when the police arrived. On the table was a quantity of paraphernalia which included two burnt tin foils with traces of suspected dangerous drugs, two match box covers with traces of suspected dangerous drugs, three cigarette lighters, two radio pagers and cash in the sum of $4,300.20. There was also a folded banknote on which was 0.3 grammes of a mixture containing 0.12 grammes of salts of esters of morphine, a sealed packet of a mixture of 0.78 grammes contained 0.29 grammes of salts of esters of morphine and a sealed plastic bag which contained a sealed transparent plastic bag which also contained a small quantity of dangerous drugs. The table gave every appearance of having been used by more than one person for the smoking of dangerous drugs.

5. The trial judge said when describing the scene in her Reasons for Verdict:

"On the table of the living room were amongst other items are referred to in photo 10 paraphernalia for smoking dangerous drugs according to Inspector Dunn. These are shown in photo 10 of Exhibit P6 and itemised with numbers. There were two burnt tin foil underneath one was a brown piece of paper with traces of dangerous drugs shown as item 21 and item 17 was the other burnt tin foil. On the table were two pagers one belonging to each of the two Defendants at one corner of the table was a wad of folded bank notes amounting in value to $4,300.20. There was another $100 note on which item (xii) in Government Chemist Certificate was 30 grammes of mixture containing 12 grammes of salts of esters of morphine. Item 12 is a sealed packet of a mixture of 0.78 grammes with 0.29 grammes of salts of esters of morphine; item 15 a sealed bag of suspected dangerous drugs in a black plastic bag put inside a glucose tin, item 34 two small black plastic bags similar to item 28 inside the other glucose tin. Item 22 one plastic bag with traces of dangerous drugs, item 23 one Po Chai phial with cap with traces of dangerous drugs. Other items listed were lighters, folded wedges of paper, small tweezers and a pair of scissors."

6. We cannot help but remark that Reasons in the appeal record appear to be an uncorrected draft. The grammatical errors therein are not of any consequence but the statement that the drugs on the banknote were 30 grammes of a mixture containing 12 grammes of salts of esters of morphine is a serious error. That amount is more than the whole amount specified in the charge. Counsel informed us this should read "0.3 grammes of a mixture containing 0.12 grammes of salts of esters of morphine". We point out again that it is the duty of a district judge before despatching material to be incorporated in an Appeal Record carefully to check to ensure the correctness of that material.

7. The 1st applicant in his statement admitted that he was tenant of the premises but denied all knowledge of the heroin. The 2nd applicant in his statement said that he and the 1st applicant had bought the heroin in partnership and that they had inhaled and smoked it together. The trial judge made the following finding with regard to the articles on the table:

"From the fact that both parties' pagers were found on the table it would seem that both parties had the use of the table. The items of exhibits seized were exposed to view. The signs of smoking of dangerous drugs and the chopping of dangerous drugs was an activity which was conducted in an open manner with no attempt to hide the activity within the premises. The wad of bank notes amounting to $4,300.20 was put on the corner of a table the use of which was obviously shared and where dangerous drugs and paraphernalia for smoking dangerous drugs was."

It might have been thought that the trial judge would, upon the basis of this finding, have proceeded to find both applicants guilty of the 2nd charge. Her findings were, however, as follows:

"I am of the view that the wad of bank notes placed on the table which use is shared suggests that the bank notes were not in the exclusive possession of either the 1st or the 2nd Defendant. The notes in the sum of $4,300 are not a small amount. One would expect that such a large sum would be put away in its owner's bedroom which contains cupboards. The fact that it was put on the table suggests the fact that it was recently received and did not belong exclusively to either Defendants but was in the joint possession of the Defendants. I am of the view that from this and from evidence of dangerous drugs and the activity of rendering the drugs into powder form together with Exhibits itemized in photo 9 and photo 10 of Exhibit P6, that the bank notes are the proceeds of trafficking in dangerous drugs. Item 15 in photo 10 inside its black plastic bag which serves as protective covering is a packaged item of dangerous drug ready to be taken away. The two pagers on the table could be used for ready communication related to trafficking.

On the basis of the evidence before me I find that the Crown has established beyond reasonable doubt the 1st Charge against both Defendants. I convict both Defendants of the 1st Charge. The 2nd Defendant has pleaded guilty to the 2nd Charge. There is no direct evidence against the 1st Defendant on the 2nd Charge. I find that the Crown has not established the 2nd charge against the 1st Defendant beyond reasonable doubt. I acquit the 1st Defendant of the 2nd Charge."

8. In view of the finding that "both parties had the use of the table", to which we have referred, and her finding that the money on the table was in "the joint possession of the defendants", we find it difficult to follow the reasoning which led to the acquittal of the 1st applicant on the 2nd charge. However that may be, the judge did acquit him and we must respect that decision.

9. The finding of trafficking was vigorously attacked by both of the counsel who appeared for the applicants. It was submitted that the finding of the cash and the pagers was at best equivocal evidence to suggest trafficking. It was pointed out that there was no evidence before the court to suggest that the amount involved was more than an addict - indeed, in this case, two addicts - would have had in their possession for their own use and that there were no scales, small plastic bags or other small containers such as are customarily used in the packaging of dangerous drugs. Indeed it was the submission of counsel that the evidence more strongly suggested that the drugs were for personal consumption rather than for trafficking.

10. Mr. Bruce, who appeared for the Crown, was alive to the difficulties which he faced when submitting that the evidence overall was sufficient to support an inference of trafficking. While it is true that the circumstances were suspicious we are satisfied that they were not such as could properly give rise to such an inference to the exclusion of all other inferences. In our view an inference of possession for personal consumption could not be wholly excluded.

11. We allow the applications, treat the hearing of the applications as the hearing of the appeals and order that the convictions on the 1st charge be quashed. As regards the 2nd applicant we order that the quashed conviction be substituted by one of simple possession.

12. We have some difficulty as regards the 1st applicant. Had the trial judge come to the conclusion that the 1st applicant was jointly in possession of the paraphernalia then we would have had no hesitation in finding that there was overwhelming evidence to arrive at a conclusion that he was also in joint possession of the drugs on the floor. However the trial judge has found that he was not guilty of possession of the paraphernalia and we must respect that finding. Given that finding we see no way in which we could logically proceed to enter a conviction for simple possession of the drugs in the 1st charge. Once the 1st applicant was found not guilty of possession of the paraphernalia and the drugs on the table then the nexus which we might have been satisfied linked him to the drugs on the floor was removed. In the circumstances we considered that we could not properly enter a verdict of guilty of simple possession against the 1st applicant and he was therefore ordered to be discharged.