THE ATTORNEY GENERAL v. TAM KWING CHI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1008 of 1986

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BETWEEN

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JUDGMENT

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1. The respondent, who was the 3rd defendant at the trial, was charged with the offence of smoking a dangerous drug, namely opium, contrary to section 8(1)(b) of the Dangerous Drugs Ordinance, Cap. 134.

2. At the trial on the 22nd of May 1986, the magistrate ruled that the respondent had no case to answer and therefore acquitted him on the ground that although this was a case in which the presumption under section 48(2) of the said Ordinance applied, the offence was one where proof of mens rea was required and that the statutory presumptions did not assist the prosecution in proving knowledge in the respondent that he knew the nature of the drug presumed to be smoked, nor was there any evidence which was adduced at the trial upon which an inference could be drawn that the respondent knew he was smoking a dangerous drug.

3. Certain facts were admitted on behalf of both the appellant and the respondent, and they are that about 16:40 hours on the 19th of April 1986, the respondent had just stepped out of the flat, known as Flat E, 7th floor, Common Bond Building, Tsing Min Path, Castle Peak Road when he was intercepted by Customs Officers who then brought him back into the flat. Inside the flat, certain paraphenalia for the smoking of opium, and prepared opium itself, were found. On the evidence, the magistrate applied the presumption in section 48(2) of the Ordinance which reads:-

"Any person found in or escaping from a divan shall, until the contrary is proved, be presumed to have been smoking, inhaling, ingesting or injecting a dangerous drug therein."

 

4. However, as I mentioned earlier, he stated that there was no evidence in the case upon which he could infer that the respondent knew what he was smoking was a dangerous drug and there was no presumption of knowledge as to the nature of the drug smoked. In stating a case, the magistrate asked the following questions:-

5. At the hearing of the appeal, it was submitted on behalf of the appellant that, taking a commonsense view, a person who smokes a dangerous drug must necessarily be in possession of it and that being so, the presumption in Section 47(3) of the Ordinance which reads:-

"Any person who is found or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

applies to the respondent. This was conceded by Mr. Young on behalf of the respondent, and I agree that in view of the circumstances, that this is so. Moreover, there was evidence led on behalf of the appellant that the 1st defendant referred to earlier, stated in the presence of the respondent and another person who was also present in the premises at the time, that the "opium divan" was his when asked "Whose opium divan is it?" I think the inference could be drawn from this evidence, and from the substances found in the premises, and the further evidence that when the Customs Officers went to a room in the flat, they found the 1st defendant lying on a bed with a lamp lit and the exhibits in front of him at the time of the entry, that those premises were used for the purpose of smoking opium. The answers to the two questions posed by the magistrate are therefore NO and this case is remitted to him to continue the hearing of the charge against the respondent.

6. In conceding that the presumption in Section 47(3) of the Dangerous Drugs Ordinance applied to the respondent, Mr Young sought to argue that since the respondent was not found inside the premises at the time of the appearance of the Customs Officers, the respondent having been brought back into the premises, there was no evidence to raise the presumption in Section 48(2) of the Ordinance, if the meaning of the words "found in" which appear in the Section were strictly construed. Unfortunately, this matter was not raised in the case stated; the magistrate having accepted that the presumption applied, nor was this considered in the magistrates determination when he ruled that the respondent had no case to answer. In view of this, I decided that further argument on this matter would not be appropriate [See A.G. v. Leung Chi Kin (1974) H.K.L.R. 269 at page 273]- Huggins J., as he then was,:-

                "The case stated should contain in numbered paragraph

                (d)    the questions the Court is asked to answer.

They should be stated clearly and concisely and care should be taken to ensure that the questions are not wider than is warranted by the facts. A case stated is not to be used as a device for obtaining the opinion of the Court upon questions which did not form the basis of the magistrate's decision, and even when a point did form part of the basis of his decision, if it was not taken at the trial the Court will not allow it to be argued on appeal unless it is on which no evidence could alter : Kates v. Jeffery."