R. v. HUNG SHU KEUNG

IN THE COURT OF APPEAL

1996, No. 35
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 11 December 1995 the applicant was convicted after trial of one offence of aiding and abetting trafficking by Wong Kwok-yee in a mixture containing 28.16 grammes of heroin. The offence took place on 8 February 1995 at Chung Hing Mansion. The applicant was later sentenced to 3 years imprisonment.

The facts

2. Two others were seen leaving a flat on 22nd floor of Chung Hing Mansion and were stopped by police. Drugs and keys were found on them. The keys were used to enter the flat. When the police came into the flat, the applicant was there watching TV. Along side him were five plastic bags containing the drugs in the charge. Also in the flat was a large amount of drug packing and mixing paraphernalia.

3. The applicant did not give evidence at trial but he made statements to the police which were in evidence. Those statements were substantially exculpatory. The first statement was completely exculpatory. So far as the second statement was concerned, he said that on two previous occasions he had assisted the main culprit, the trafficker (D1), in packing work. He said that on one occasion previously, he had sealed plastic straws for him and on two other occasions he took dangerous drugs to him at his request by taxi. He was told that he would be paid $300 for that but he never received any money.

The evidence

4. The evidence for the judge's consideration, therefore, was that the applicant was in the flat with the drugs on his own. He denied having anything to do with those drugs although they were near him. They had been brought there, he said, by the main culprit. He had not been asked to deal with them nor had he done anything with them. He had seen no one else to do anything with them. In summary, the evidence was his presence in the flat with the drugs and his admission that on other occasions, but not this, he had been involved in trafficking.

The judge's finding and reasons

5. The judge came to the conclusion that there was insufficient evidence for a finding that the applicant was in joint possession of the drugs found in the flat and the subject of the charge. He, therefore, turned to the question whether the applicant was guilty of aiding and abetting the main culprit in trafficking. That is a difficult concept in the particular circumstances of this case after a finding that he was not in joint possession and had little to do with the drugs charged other than being in the same room.

6. The basis of the judge's finding against the applicant is to be found on p.16 of his reasons for verdict. He finds:

(i) That the applicant knew of the delivery of the dangerous drugs and what D1, the main culprit, was intending to do with them.

(ii) He was satisfied that his conduct could not be said to be wholly passive - whatever that may mean.

(iii) He said that he was satisfied that the applicant approved of what D1 was doing and offered no opposition.

(iv) That he wilfully encouraged D1 as "guardian" of the dangerous drugs in his absence;

and so aided and abetted him in the trafficking of those drugs.

7. Further, he had regard to the presence of the dangerous drugs within feet of the applicant and his prior activities in respect of earlier deliveries of drugs which gave, he says, support ; and he inferred that more readily because the applicant had not seen fit to give evidence.

Conclusion

8. Central to this finding was that he encouraged D1 because he was guardian of the dangerous drug in his absence. It seems to us that that finding is quite inconsistent with the finding that he was not in joint possession of the drugs with D1, or at least it is sufficiently inconsistent as to make this Court think that the finding is unsafe and that the conviction which follows is equally unsafe and unsatisfactory.

9. In these circumstances we treat this application as the appeal, allow the appeal and quash both the conviction and sentence.