THE QUEEN v. LEE SHUK CHING

Headnote

A conviction which results from a trial in which a defendant has by reason of a misstatement as to the onus of proof arising in relation to the presumptions under section 47 of the Dangerous Drugs Ordinance which in effect deprives a defendant of the right to silence cannot be allowed to stand.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant was charged with possession of dangerous drugs for the purpose of unlawful trafficking and tried before Her Honour Judge Chan in the District Court. This charge was particularized as follows: that she and co-defendant HO Kwok-wai, on the 20th of March 1989 at Room 1037, 10th floor, Block 15, Shek Lei Estate, Kwai Chung, had in their possession a dangerous drug, namely 99.49 grammes of a mixture containing 4.79 grammes of salts of esters of morphine, for the purpose of unlawful trafficking. The trial judge accepted the evidence of the prosecution witnesses and rejected the evidence of the applicant.

3. The facts upon which the Crown relied can be briefly stated. On the date of the offence the police were carrying out surveillance on the premises referred to in the particulars and the co-defendant was seen to leave at about 7.25p.m. He was stopped and searched, but no key to the premises was found upon him. The police then knocked on the door, declared their identity and, when their request to open the door was not complied with, they broke into the room. As they did so they heard the flushing of a toilet and one of the police officers rushed to the toilet where he saw the applicant putting her right hand into the toilet tank. The tank was immediately searched and three polythene bags with suspected dangerous drugs were found therein. A later search of the premises revealed five more polythene bags with suspected dangerous drugs, a plastic cylinder, a pair of scissors and six open polythene bags on a wooden stool. In a cupboard, further 5 polythene bags with suspected dangerous drugs were found together with a pile of empty bags wrapped in paper. It was the Crown evidence that there were also traces of dangerous drugs scattered on the ground and traces found on a brown rug. The keys to the premises were found in a chest and also found therein were items belonging to the co-defendant and a letter belonging to the applicant. The applicant gave evidence denying knowledge of the existence of the dangerous drugs. The trial judge rejected her evidence and was, having accepted the evidence of the prosecution witnesses, satisfied that the applicant was guilty as charged.

4. It is not necessary to canvass fully the grounds of appeal placed before us by Mr. Mullick who appears today for the applicant. We need turn only to the first of those grounds which reads:

"The learned trial judge, in her explanation of the statutory presumptions relating to the possession of dangerous drugs, wrongly advised the Appellant, who was unrepresented, that it was incumbent upon her to prove on the balance of probabilities, that she was not in possession and did not have custody and control of the premises in which the said dangerous drugs were found."

The applicant was not represented at trial and immediately after she had pleaded not guilty the trial judge gave her the following explanation of the law relating to the presumptions that might arise against her under the Dangerous Drugs Ordinance. She said:

This was not a correct statement of the onus that lay upon the applicant. The initial onus was on the Crown to establish beyond reasonable doubt the primary facts which would give rise to the presumption. We appreciate that the words recorded are only a paraphrase of what was said but they seem to indicate that the applicant was told that the onus lay on her to prove to the court that she was not in possession of the premises and that no mention was made of the primary onus which lay upon the Crown. If this was so, and we must, guided by the record, proceed upon the basis that it was, there was here a misleading statement of law which was, in the context of this trial, of considerable materiality. The trial judge went on to say:

"D2 (the applicant) told that to rebut the presumption under S.47 (1) (c) you have to give evidence on the issue of whether the premises were in your possession custody or your control. That means that you have to convince me by your evidence adduced that more likely than not the premises was not under your possession custody or control. Do you understand?" (Emphasis added)

This explanation contains a misstatement of law of greater seriousness. There is no requirement that the applicant must give evidence on the issue in order to rebut the presumption. The applicant is entitled to remain silent and to rely upon other evidence, Crown evidence or evidence called by the defence, to establish that the presumption has, upon the balance of probabilities, been displaced. This was a particularly serious misstatement in the context of this trial. The applicant was being told, in effect, that unless she gave evidence the presumption would arise and a conviction would be inevitable.

5. The matter was not alleviated by the further directions given by the trial judge who went on when dealing with the presumption arising as to trafficking to say:

"If you want to rebut the presumption you have to give evidence by yourself or witnesses or other evidence to satisfy me that more likely than not the purpose is other than presumed, i.e. for trafficking."

While this explanation came nearer to being correct than the earlier one, it also might have been taken to be an indication that there was a requirement upon the applicant to produce evidence to rebut the presumption.

6. The matter was taken no further by the statement by the trial judge at the conclusion of the Crown case where she simply said:

"It is for the Crown to prove the charge against you beyond reasonable doubt. The onus is on them to do so. You can elect whether you wish to give evidence or not even if you do not wish to give evidence you could call witnesses. However if you do give evidence you are subject to cross-examination."

No mention was, at this state, made of the presumptions or of the way in which they might be rebutted.

7. The applicant, it seems to us clear, must have been left with the impression that she had to enter the witness box and give evidence and that if she did not do so the presumptions would arise and conviction would be inevitable. Lack of knowledge being the real defence advanced, it is also a matter of concern that knowledge, insofar as it is an element of the presumption of possession, was never touched upon at all.

8. The trial judge was, in the outcome satisfied, without having resort to the presumptions, that the applicant was in possession of the dangerous drugs. This conclusion was arrived at, however, in part at least, because she had seen the applicant in the witness box, had found her to be an untruthful witness and had rejected her explanations.

9. We accept that a strong Crown case would have been no less strong had the applicant, having had the presumptions and their effect properly explained, elected to give no evidence. We are, nonetheless, satisfied that a conviction which results from a trial in which a defendant has, in effect, been deprived of her right to silence cannot be allowed to stand. Such a trial is fundamentally flawed and the conviction resulting therefrom must be quashed.

10. We are equally satisfied that a re-trial must be ordered.

11. The hearing of the application will be treated as the hearing of the appeal and the conviction will be quashed. The applicant is ordered to be retried on a fresh indictment.