R. v. CHONG KIN CHEONG

IN THE COURT OF APPEAL

1995, No. 196

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. The applicant seeks leave to appeal against his conviction after trial of trafficking in dangerous drugs by Deputy Judge Candy in the District Court on the 24 February 1995. The judge sentenced him to 3½ years imprisonment.

The facts

2. The charge alleges trafficking in 44.98 gm of a mixture containing 15.65 gms of heroin. The applicant admits possession of the drug. He also admits all the other facts contained in the amended summary, which reads:

"At about 1620 hours on 21.2.94, PC 4118 (PW1), PC47865 (PW2) and other officers of SDS II/Yuen Long conducted observation in plainclothes in the vicinity of Nam Bin Wai, Yuen Long. PW1 & PW2 patrolled around Cheung Shing Street and Lei Yick Street, Yuen Long.

At 1835 hours on the same day, PW1 & PW2 saw the defendant walking from Lei Yick Street towards Cheung Shing Street acting in furtive manner. PW 1-2 then stopped the defendant and revealed their police identity, respectively. PW1 searched the defendant and found a plastic bag containing 10 plastic bags and each of which contains 10 plastic straws of suspected dangerous drugs. There was a total number of 100 plastic straws. All were of similar size with both end heat-sealed. PW1 asked the defendant what they were and the defendant did reply something. PW1 then arrested and cautioned the defendant."

3. The applicant chose not to give evidence with the result that this became a "paper" trial. Counsel for the applicant made no submission but the judge ruled that he had a case to answer.

4. The judge gave brief reasons for verdict which we set out in full:

"The Defendant was in possession of ten bags each containing ten straw packets of dangerous drugs. Total quantity almost 45 grammes with 15.65 salts of esters of morphine.

From the evidence of the quantity and in particular the manner of packaging I am satisfied beyond reasonable doubt that the Defendant did not have the entire quantity of his own consumption but intended to pass them to others. The Defendant is convicted as charged."

The Applicant's Case

5. The evidence for the prosecution is correctly summarised by Mr. Dykes, who appears for the applicant, as follows:

(i) the defendant was stopped in a public street by two police officers;

(ii) he had in his possession a plastic bag which contained ten smaller plastic bags each of which had ten plastic heat-sealed straws of similar size containing the drugs;

(iii) the total amount of drugs was 44.98 gms of a mixture containing 15.65 gms of heroin.

6. In his reasons the judge concentrates upon the manner of packaging - the 100 straws in ten separate plastic bags - and the total amount of narcotics. Although he did not mention the fact that the applicant had this quantity and number of packets in his possession in a public street, it must have been well in his mind.

7. Mr. Dykes submits that in order to convict it was necessary for the judge to find that the only possible and irresistible inference was that these drugs were for trafficking, whereas the packaging is neutral and the amount was such that if the applicant were an addict he may have been in possession of them for his own consumption. He cites R v Kwan Ping Bong [1979] HKLR 1 at 5 where Lord Diplock observed:

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged - and the proof must be "beyond all reasonable doubt", which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

Conclusion

8. The answer to this appeal is in the application of this criminal standard of proof to the facts of the case. On the evidence before him, was it open to the Deputy Judge to find so that he was sure that the applicant was trafficking in the drugs?

9. As was his right, the applicant chose not to give evidence. This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge's task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task - nor that of a jury - to speculate upon the absence of possible evidence. His duty was to try the case just on the evidence before him.

10. Here there is no evidence that the applicant is an addict. He was found in the street with a considerable quantity of drugs, divided into at least a hundred doses, ready and conveniently packaged in quantities for 10 separate sales. Absent him being an addict he must have been trafficking.

11. The words of Lord Keith giving the opinion of the Privy Council in R. v. Tan Siew Gim [1995] 2 HKC 513 at 517 G-H are in point:

"It is a significant feature of the case that the appellant did not give evidence in her defence. The matters revealed by the evidence for the prosecution cried out for some explanation on the part of the appellant which might be consistent with her innocence. The nature of these matters was such that the jury would have been well entitled to consider that in the absence of any evidence to the contrary from the appellant she must be taken to have been aware of the true character of ARFL's activities."

Here the circumstances agreed cried out for an explanation - if there was one - consistent with the applicant's innocence. None was given. On the evidence we are satisfied that it was open to the Deputy Judge to convict. The application must be dismissed.