R. v. LAM CHUN MING

IN THE COURT OF APPEAL

1992, No. 189
(Criminal)

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J U D G M E N T

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Penlington, J.A.: (This is the judgment of the Court.)

1. This is an application for leave to appeal against conviction by Deputy Judge Le Pichon in the District Court on a charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The central issue was whether or not the applicant was in possession of premises at 123 Yu Chau Street, 4th Floor, Room 5, in which a quantity of 139 grammes of heroin was found. There was some evidence indicating that he did have such possession but because of the view which were taken on this matter there is no need to go into that evidence in any detail.

3. Unfortunately, the trial judge in her reasons for verdict, which for the most part are impeccable, when she came to the question of the burden of proof in relation to the possession of the room, said, inter alia:

"The Defendant was the tenant. As such, he was entitled to and did have possession of the room in question. He has failed to prove on a balance of probabilities that he was not residing there at the time in question."

This would appear to indicate that the trial judge had considered the matter on the basis that the law was that if a person was the tenant of premises he was required to rebut a presumption that he was residing there and was in possession of any dangerous drugs found therein. However, as the trial judge herself said, that was not the law at the time she was dealing with this matter. If it is the Crown's case, as it was here, that a defendant was in possession of premises and of dangerous drugs found therein, that must be proved to the usual criminal standard. There is no onus on the defendant, even on a balance of probabilities. We therefore consider that this is an apparent error on a fundamental issue, that the conviction must be set aside and there should be a re-trial.

4. We also have an application before us today to call evidence for the applicant from a person who is at the moment an inmate of Shek Koo Chau Drug Addiction Treatment Centre. He may give evidence supporting the applicant's case that another person was in possession of the premises at the relevant time. We accept that the existence of this person was not known to the applicant or his advisers before the trial. In ordering a re-trial we do so because the Crown's evidence of this matter was reasonably strong and thus would also enable the additional witness to be called at a trial which is more satisfactory than having such evidence called in this Court. We therefore allow the appeal and order a re-trial on a date to be fixed.