1986, No. 458
(Criminal)

IN THE COURT OF APPEAL

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JUDGMENT

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Power, J.:

1. The applicant, Cheung So Ting (f), faced a charge of possession of dangerous drugs for the purpose of unlawful trafficking with three other persons. The particulars of the charge specified that the four persons had been in possession of a dangerous drug namely 55.6 grammes of salts of esters of morphine for the purpose of unlawful trafficking on the 22^nd May 1986 at the 2/F, 27 Lan Fong Road, Wanchai.

2. The applicant faced an alternative charge of being an occupier permitting premises to be used for the unlawful storage of a dangerous drug but the judge, having been satisfied as to guilt on the first charge and sentenced the applicant to imprisonment for 3 years thereon, did not proceed to deal with the latter charge. The applicant seeks leave to appeal against both conviction and sentence.

3. The grounds advanced in the application against conviction are that the judge founded his decision that the applicant had failed to rebut the presumption of possession on irrelevant and unsound reasons and that, in all the circumstances of the case, the conviction was unsafe and unsatisfactory. The reasons given by the judge were as follows:-

"In the case of the 4th accused, I likewise gave due consideration to her previous good record. According to D4 she had been a 'hostess' for twelve months. Yet during all of that time she claimed she had never encountered anyone using Heroin or any other illegal drugs. To my mind that assertion was implausible, and flouted commonsense. Furthermore I found it unrealistic that the bunch of seven keys - which she claimed were hers and had been left on the dressing table - had somehow got into D3's pocket, and the bunch of five keys - which D1 claimed were his - had found their way onto the dressing table. I also regarded her general manner of giving evidence as being unconvincing. She likewise has railed to rebut the presumption of 'possession' of the drugs on the: balance of probabilities."

4. After the Judge had given this ruling and convicted the applicant, Miss Lau, who appeared at the trial, applied for bail pending appeal. She said that one of the grounds upon which an appeal might be lodged was the observation made by the judge about the knowledge  he would expect a hostess to have. The judge, in what he termed a "Postscript" made the following observations:-

"Firstly: that it was regrettably a notorious fact that 'hostesses' - a Hong Kong euphemism for prostitutes - were in a category of people who frequently consumed drugs, although not necessarily heroin, for a variety or reasons: (Some of which do not require a great deal of commonsense, or knowledge of the world to determine). And that I had taken judicial notice of this fact, gathered from my experience of dealing with numerous drugs cases in the Courts of this Territory. Secondly: that this was only one factor, which I considered in arriving at my conclusion about whether D4 had rebutted the presumption under Section 47 on the balance or probabilities.

Even without the existence of this aforementioned factor I would nevertheless have arrived at the same determination with regard to D4.”

5. Mr King, who appears for the applicant, submits that two of the above three reasons given by the Trial Judge for disbelieving the applicant are net sustainable.

6. The first reason was that her assertion that she, an admitted hostess, had never encountered anyone using heroin or any other illegal drugs was implausible and flouted commonsense. Mr King asks us to read this observation with the further observation in the Postscript, where the judge said that he had taken judicial notice of the fact that hostesses were in a category of people who frequently consumed drugs. He submits that the initial observation was unfair and should not have been made and acted upon and that the latter observation was not a matter as to which judicial notice could properly be taken. Mr Sulan, who appears for the Crown, concedes the latter to be so.

7. The second reason given for disbelieving the applicant was the finding that it was “unrealistic" that the seven keys, which the applicant claimed were hers, had found their way into the pocket of the 3rd accused. Mr King submits that, whatever might have been said in this regard as to the evidence of Dl and D3, it was unfair to make any such observation when dealing with the evidence of the applicant.

8. The third reason, upon which no attack is launched, was that the applicant's general manner of giving evidence was unconvincing.

9. We turn to the criticisms of the judge's first reason for disbelieving the applicant. We are satisfied that the judge did take judicial notice of matters which he should have disregarded, by drawing inferences from the fact that the applicant was a hostess. Had the matter stood as it did after the initial ruling, even though the judge found that the applicant's manner of giving evidence was unconvincing, there would have been considerable force in Mr King's argument. However, the matter was not left so to stand. The judge in his postscript said: "Even without the existence of this aforementioned factor (i.e. that the applicant was a hostess) I would, nevertheless have arrived at the same determination with regard to D4” Mr King submits even so that this court must regard it as a real likelihood that the original observations of the judge tainted his approach when he came to consider demeanour and, that this court must therefore hold that the conviction is unsafe and unsatisfactory.

10. We are not persuaded that we can properly take that view. We accept the judge's observation that “even had he not taken the fact that the applicant was a hostess into account, he would have arrived at the same determination" and are satisfied that, even if he had drawn any inferences from the fact that the applicant was a hostess, he would have arrived at the same conclusion as to her credibility.

11. We turn to the arguments advanced with regard to the second reason in which the judge stated that the evidence with regard to the keys was unrealistic.

12. D1, the boyfriend of the applicant. was found by the police with D2 and D3, a boy aged 14, on the premises. The applicant arrived back at the premises shortly after the police had completed their search.

13. DPC 9220, a member of the raiding party, said that he found 5 keys on a ring on the dressing table and that one of these fitted the main door and one fitted an inward opening door.

14. P.C. Li, another member of the raiding party, said he found a set of 7 keys in the trouser pocket of D3 and that one fitted the main door and one fitted the bedroom door.

15. D1's evidence was that the 7 keys came from the dressing table not the pocket of D3 and that the 5 keys came from his pocket not the dressing table. He said that the 7 keys belonged to the applicant who had forgotten to take them with her.

16. D3 in evidence said that the 7 keys were found not in his pocket but on the dressing table.

17. The applicant's evidence was that the 7 keys were her keys, that she never lent them to D3 but that she did not mind if others borrowed them.

18. Mr King concedes that the judge was quite entitled to believe the police as to the finding of the keys and to be satisfied that Dl and D3 were untruthful in that regard but argues that he was not entitled to draw any inference adverse to the applicant from the fact that her keys were found in the pocket of D3, as she had left the keys behind when she went out and could not be expected to have had any knowledge as to what happened to them in her absence. Clearly the remark by the judge that he found the evidence regarding the keys unrealistic cannot be criticized insofar as it refers to the evidence of D1 and D2. We are, moreover, satisfied, given that the applicant was saying that the 7 keys were hers and that she had never lent them to D3 and given that there was no explanation forthcoming from any source as to how they had got into his pocket, that the remark cannot properly be criticized insofar as it applied to the evidence of the applicant. There is, therefore, in the outcome, nothing which causes us to consider the conviction unsafe and unsatisfactory. The application for leave to appeal against conviction is refused.

19. The applicant also appeals against sentence on the grounds that the sentence of imprisonment of 3 years imposed was wrong in principle and excessive. Mr King argues that the judge should have called for a probation report before passing sentence. We do not agree and are satisfied that he was correct in proceeding directly to sentence. He was dealing with an adult on a charge of possession of dangerous drugs for the purpose of unlawful trafficking and whether he wished in such circumstances to call for a probation officer's report was entirely a matter for the judge.

20. Mr King suggests also that insufficient weight was given to the circumstances of the applicant and in particular to her age, to her previous good character, to the fact that she had been living with the 1st defendant only for a period of 2 months prior to her arrest and to the fact that the 1st defendant had a previous conviction for the same offence. The judge, when sentencing the applicant, said that he considered the 1st defendant was probably the prima mover. Given the fact of his previous conviction, and that he is older than the applicant, this presumption was justified.

21. The judge did not in his easons, however, make any mention of the probability, which seems to us very likely one, that the applicant’s involvement with dangerous drugs had come about only because she was the girl friend of, and was influenced by, the 1st defendant.

22. We consider that if proper weight were given to this probability, the sentence imposed was excessive and that it should be reduced to one of 18 months.

23. We, therefore, allow the application, treat the hearing of the application as the hearing of the appeal and order that the sentence of 3 years be quashed and replaced by a sentence of 18 months.