THE QUEEN v. FONG NGA YEE

IN THE HIGH COURT

1992, No. 966
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. The appellant FONG Nga-yee was sixteen and a half years old at the time when the offence was allegedly committed. She was convicted by Mr. Lin at the Tsuen Wan Magistracy on 27 October 1992 of one charge of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to Section 7(1) of Dangerous Drugs Ordinance, Cap. 134. At the same time she was acquitted of a charge of being in possession of equipment fit and intended for injecting dangerous drugs, namely three sets of syringes.

2. The facts of the case have been set out with clarity by the magistrate and I adopt his formulation as follows. On 18th December 1991 a team of police officers went to a flat on the 2nd floor of 103 Chuen Lung Street, Tsuen Wan to carry out a raid. They broke into the flat and then found that the door to one of the cubicles inside the flat was locked. There were noises of people coming from the cubicle. The police knocked on the door of the cubicle and demanded entry but the door was not opened. Finally the police broke open the door to the cubicle. Inside was found the appellant and a male. The cubicle was small, about 8 feet by 6. There was a mattress on the floor and on the mattress were a number of articles including cigarette packets containing dangerous drugs, 15 straw packets containing dangerous drugs, three sets of syringes, a pair of scales, a pair of scissors. There was also a blender. Some of the items I mentioned were found on the floor of the cubicle. There were also two bed spreads, both of which were found later to contain traces of salts of esters of morphine.

3. The appellant together with the male, one Lam Cheung-nam, were arrested by the police. When the appellant was told that she was arrested for possession of dangerous drugs and equipment and was cautioned she said words to this effect: That she came to know that there were dangerous drugs there, it was her boy friend Lam who told her this; the dangerous drugs belonged to Lam and she came to know of that fact when told by her boy friend. At one point she seemed to have said that she came to know of this at about 9.30 that evening, that is about an hour and a half before the police raid. At another point she seemed to say that she came to know of this shortly before the police arrived. The police used a comb to comb her hair and the evidence was that there was a trace of a mixture containing salts of esters of morphine found on the comb: less than 0.02 grammes, with an unquantifiable amount of salts of esters of morphine. Similarly in nail clippings taken from her were found traces of salts of esters of morphine: less than 0.02 grammes as far as the mixture was concerned, with untraceable quantities of salts of esters of morphine. Of the ten nail clippings, nine revealed such traces.

4. Upon these facts she was charged jointly with Lam Cheung-nam with possession of dangerous drugs for the purpose of unlawful trafficking, the quantity being a total of 59.08 grammes of a mixture containing 26.75 grammes of salts of esters of morphine.

5. In acquitting the appellant of the charge of possession of the syringes, being equipment fit and intended for injecting dangerous drugs, the Magistrate said that apart from the fact that these were found in the same room as the appellant there was no link between her and the syringes and giving her the benefit of the doubt she was acquitted.

6. As regards the trafficking in dangerous drugs charge the Magistrate said this :

“In the present case the defendant was found inside a small room with another male together with various items that were obviously related to packaging of dangerous drugs. She also stated she was aware of the fact that there were dangerous drugs. Further that her hair and finger nails contained traces of salts of esters of morphine also indicated that she had handled the dangerous drugs before the police broke in. These circumstances left me with no doubt at all that the defendant must have control and custody of the dangerous drugs shortly before she was arrested. The existence of the scissors, straw packets, scales etc. also left me with no doubt at all that the dangerous drugs were there to be packed for purposes other than self-use.”

7. Mr. Mumford, counsel for the appellant, makes two main points. Firstly where the Magistrate said that the appellant admitted knowledge that there were dangerous drugs there, this was an incomplete summary of the effect of the statement to the police under caution; the Magistrate seemed to have taken that as evidence pointing some way towards implicating the appellant in the crime of possession for the purpose of trafficking; in truth, if the whole of her statement were taken, it could be said to be exculpatory because at the same time she told the police that she had nothing to do with the dangerous drugs and her knowledge of the presence of the dangerous drugs came merely from her boy friend, that is to say not derived from any personal knowledge. In my judgment there is considerable force in this submission.

8. The second point advanced by Mr. Mumford is this. There was no forensic evidence called at the trial. The traces of drugs found in her hair and in her finger nails were of such minute quantity as to be unquantifiable. The Magistrate in convicting the appellant said that the presence of such dangerous drugs in her nails and her hair led to the inevitable conclusion that she did handle these drugs before the police arrived. The question is whether such a conclusion is justified upon the evidence. In my judgment the Magistrate has gone too far in this regard. The circumstances were certainly highly suspicious. There was however very little to link the appellant to the cubicle and to the contents of the cubicle. There was no evidence that any of her fingerprints were found on any of the instruments such as the scissors and the scales referred to by the Magistrate. There was no evidence that any personal items of any kind of a female nature were found inside the cubicle. It was Lam who had the key to the flat. She did not.

9. Mr. Mumford makes this point, that conceivably mere contact with things like bed-spreads with traces of heroin on them could lead to contamination of the appellant’s person such as her hair and even finger nails. Whilst the presence of equipment normally associated with packaging and trafficking in dangerous drugs could point to the appellant being implicated, and further the presence of traces of drugs in her finger nails could point to the appellant having handled the dangerous drugs or such equipment, in my judgment the Magistrate was wrong to have concluded that these pieces of evidence led to the inevitable conclusion that she must have handled the drugs before the police arrived. To this extent, in my judgment, his finding is faulted.

10. If there is no sufficient evidence to suggest that she must have handled the drugs then plainly evidence pointing to her being in custody and control of such drugs is absent. That being so, in my view, the conviction in this case is unsafe and unsatisfactory and is hereby quashed. The appeal is accordingly allowed.