R. v. MA YUEN MAN

IN THE COURT OF APPEAL

1994, No. 364
(Criminal)

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J U D G M E N T

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Liu JA:

1. The applicant and the woman with whom he was cohabiting were charged with trafficking in a dangerous drug. The woman pleaded guilty and gave evidence at the trial of the applicant before Deputy Judge Christie in the District Court. The applicant elected not to give evidence. He was duly convicted and now seeks leave to appeal against his conviction.

2. On 2 June 1993 at 7:20 a.m., the police carried out an anti-dangerous drug operation and gained entry into a flat in Waldorf Garden, Tuen Mun. After a search, a quantity of dangerous drugs, namely 16.37 grammes of a mixture containing 5.78 grammes of salts of esters of morphine was found, together with equipment suitable for packaging dangerous drugs for sale, in the bottom drawer of a chest of four drawers in the bedroom occupied by the applicant and his cohabitant. In the same drawer, the police also discovered $213,300 in three wads of notes.

3. The applicant stated under caution "Ah Sir, the stuff does not belong to me. It belongs to my cohabitant girlfriend Ah Yee. The drawer is used by her alone." In response to questions, the applicant further stated that he had known his girlfriend for about five to six years, that they had been living in the flat for "two odd months", that he paid the rent for the flat, that the cash found in the drawer belonged to him, that he won it at gambling, that the drawer had been solely used by his girlfriend and that "usually I did not put anything into the drawer."

4. The applicant's cohabitant claimed that she lived alone at the flat and that the applicant, who for reasons of convenience paid the rent, merely visited the premises occasionally. It was her evidence that the chest of drawers contained only her belongings, that on the evening immediately prior to the police raid, the applicant had given her the money for safe-keeping while he made a trip to China and that she denied that he had any knowledge of the presence of the drugs in the flat.

5. The evidence disclosed, however, that the applicant was present in the flat at the time of the raid and that there were no signs of any preparation which indicated that he was about to embark on a trip to China or elsewhere.

6. The judge found the cohabitant to be an untruthful witness and he rejected her evidence in its entirety.

7. Mr McNamara, who appeared for the applicant in this court, submitted that the judge "erred in law when he found that an admission by the applicant as to ownership of money, which was found alongside the drugs and packaging equipment, supported inferences that the appellant placed the money in the drawer itself, that he had had knowledge of the presence of the drugs and their trafficking purpose and that he had control of them."

8. In particular Mr McNamara submitted that the judge erred in drawing any of the following inferences:

(a) that the appellant placed the money in the drawer;

(b) that he saw the drugs and packaging equipment;

(c) that he was aware of their nature and purpose;

(d) that he had control of them; and

(e) that the money had been generated by past sales of drugs packed with the equipment, the remains of which were still in the drawer.

9. In his Reasons for Verdict, the judge, having referred to the evidence to which we have also referred, said this:

"From these facts I draw the inference, and I can find no other reasonable explanation, that [the applicant] himself placed the money in that drawer. I infer that he cannot then have failed to see the other exhibits in the same drawer and to understand their nature and purpose. I infer, further, that jointly with [the cohabitant] he had control of the drugs and packaging exhibits and that this money was generated by the past sales of drugs packaged with equipment the remains of which were still in the drawer. In drawing this last inference I have given full consideration to Counsel's argument that the large amount of money is not consistent with the relatively small quantity of drugs seized. This argument, I think, overlooks the point that the money is unlikely to represent the value of the current stock of dangerous drug because it arises from past sales which may have taken place over a long period of time and involved other quantities of drugs."

10. Having totally rejected the cohabitant's evidence that the drugs belonged to her and not to the applicant, and that the applicant had no knowledge of the drugs, the judge concluded that the applicant was jointly in control of the drugs and packaging equipment and that he placed the money in the drawer in which the drugs and equipment were found. These were perfectly proper conclusions to draw in the light of the undisputed facts that the applicant rented the flat, and that he was the only other person in it at the time of the raid, coupled with his assertion that the large sum of money which was found in the drawer with the drugs and packaging equipment belonged to him. Moreover, in the circumstances of this case, the presence of that money in the drawer with the drugs and packaging equipment justifiably gave rise to the only inference that it formed the proceeds of earlier sales of drugs that had been packaged by using that equipment.

11. We are therefore satisfied that the judge did not err in drawing the conclusions necessary for finding guilt, of which Mr McNamara complains and that the conviction was neither unsafe nor unsatisfactory. The application was therefore refused.