HKSAR v. CHING KIM HO

HCMA 29/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 29 OF 2015

(ON APPEAL FROM TMCC 638 OF 2014)

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J U D G M E N T
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1.  The appellant was charged with one count of trafficking in a dangerous drug. He pleaded not guilty to the charge. After trial the appellant was found not guilty of the trafficking charge and convicted of the lesser charge of possession of a dangerous drug. The drugs concerned were 3.44 kilograms of herbal cannabis and 2.49 grams of a solid containing 0.91 grams of cocaine. He was sentenced to 24 months’ imprisonment. He now appeals against his conviction.

Facts

2.  On 24 February 2014 customs officers mounted an anti-dangerous drugs operation at the Kingswood Richly Plaza car park, Tuen Mun.  Two officers (PW1 and PW2) performed surveillance duty on a parked silver colour private car registration number ML3273 (the target vehicle) from 6 pm onwards.  

3.  At around 11:25 pm, they noticed a green colour private car registration no. SM953 driven by the appellant with a female passenger driving up.  It parked next to the target vehicle.  The appellant alighted from his vehicle, approached the rear of the target vehicle with a car key, opened the car boot with his key, bent forward and inserted his hands into the car boot.  After about 2 minutes, the customs took action to intercept the appellant.  They walked to the appellant.  PW1 showed his warrant card to the appellant, shouted out he was a customs officer and said to the appellant “I request to intercept and search you.”  The appellant immediately closed the car boot and fled at once.

4.  The two custom officers chased after the appellant.  PW1 shouted “Customs, don’t run.”  After being chased a distance of about 6 parking spaces, the appellant stopped and from his left pocket, the appellant dropped a key onto the ground, then asked “Ah Sir, what’s the matter?”  PW1 approached the appellant and revealed his identity to the appellant again and asked why he had to run.  The appellant replied “I’m afraid someone will take revenge on me.” PW1 pointed at the key on the ground and asked the appellant “what is this key for?” The appellant replied “I don’t know.”  PW1 then asked the appellant what he went there for.  The appellant replied “I came to repair the vehicle.”  PW1 asked, “Which car are you repairing?” The appellant replied “SM953.”  

5.  PW2 picked up the key from the ground.  The officers took the appellant back to the target vehicle.  PW2 used that key and successfully opened the car boot. As soon as the car boot was opened, an irritating smell emerged, and he saw several black colour plastic bags and transparent zip lock bags containing suspected cannabis inside as depicted by exhibit P39(13).  By the smell and appearance, he suspected the substances were dangerous drugs.  PW1 then cautioned the appellant.  He recorded the event in his notebook, (exhibit P50.) As recorded there, after caution, PW1 started to investigate the appellant.  The latter denied any knowledge and made no admissions.  

6.  PW3 was the assigned exhibit officer.  He came to the scene after the appellant was arrested.  He searched the target vehicle and inside the storage compartment behind the gear box he found suspected crack cocaine contained in several transparent zip locks bags wrapped by tissue paper as depicted by exhibit P39(7)-(11).  PW1 cautioned the appellant again for the new discovery.  The appellant maintained he had no idea.  A body search was conducted on the appellant and nothing was found on him.  PW1 and PW2 later took the appellant back to his residence for a house search, nothing suspicious was found there.  On the next day at about 0708 hours, PW1 conducted a video recorded interview with the appellant.  The appellant refused to answer any questions in the interview.

Defence case

7.  The appellant elected not to give evidence and did not call any witness. According to the defence case put to the prosecution witnesses under cross examination the appellant was present at the scene as he was there to repair the green colour vehicle he was driving.  The magistrate stated that no issue was taken with the following:-

(a) the appellant was seen approaching the target vehicle and opening the car boot;

(b) he stayed behind the opened car boot of the target vehicle, head leaned forward with both hands inserted into the car boot for approximately two minutes;

(c) he closed the car boot and fled immediately when the customs officers were approaching him;

(d) when being chased by the customs officers, a key was dropped onto the ground from the appellant’s person and that key could open the car boot of the target vehicle;

(e) a strong irritating smell emerged as soon as the car boot of the target vehicle was opened; and

(f) a large quantity of dangerous drugs (cannabis in herbal form) was readily visible inside the car boot. 

8.  At trial Mr Keith Oderberg counsel, who also appears for the appellant, challenged PW1 and PW2’s evidence and set out the defence case.  It was the defence case that the appellant fled on seeing the customs officers approaching him because they did not reveal their identity to the appellant, the key was not thrown onto the ground by the appellant purposely but just fell off from his trousers pocket, and the total number of keys seized by PW3 at the scene.  After consideration, the magistrate did not think the evidence challenged were important aspects of the case.

Issues at trial

9.  At issue at the trial was whether the appellant was in possession of the drugs in two separates parts of the target vehicle, the boot (the herbal cannabis) of the vehicle and in the storage box inside the vehicle (the cocaine) and secondly whether the appellant knew that they were dangerous drugs.

The findings of the magistrate[1]

10.  The magistrate found the prosecution witnesses to be honest and relied on their evidence.  He found that the appellant was in possession of the drugs in the boot and in the storage box inside the target vehicle and knew that they were dangerous drugs.  He rejected the explanation that the appellant was there for the purposes of repairing his vehicle. 

Grounds of appeal

11.  Mr Oderberg advanced six grounds of appeal. 

12.  The first ground of appeal was that the magistrate erred in law in applying the presumption in s 47(1)(b) of the Dangerous Drugs Ordinance Cap 134 (DDO) to possession of a car key where the drugs were found inside the vehicle.

13.  The second and fourth grounds of appeal were combined together.  It was submitted that there was no evidence of any interaction of any kind between the drugs and the appellant so that as a matter of law and fact, there was no evidence of possession or control of the drugs by the appellant.  There was an absence of any forensic evidence of contact between any of the drugs and the appellant in light of the fact that the appellant's hands were inside the boot for some time.

14.  The third ground was that the magistrate erred in finding that the appellant possessed the only key to the target vehicle when in fact there may have been other copied keys.

15.  The fifth ground was that the magistrate erred in rejecting the appellant's account of going to the car park to repair the vehicle as repair tools were not visible in the photographs taken from the target vehicle when the appellant never stated that he knew for a fact the tools were in the boot.

16.  The sixth ground was that the magistrate erred in holding that as the custom officers did not believe the explanation for the appellant’s presence at the boot of the target vehicle they did not need to ask for any information of the defect of the vehicle SM953.

Application of s 47(1)(b) of the Dangerous Drugs Ordinance

17.  Turning to deal with the first ground.  The magistrate erred in his application of the presumption in s 47(1)(b) of the DDO when the possession of a car key (the previous s 47(1)(c)) was specifically struck down as being in breach of the Bill of Rights Ordinance Cap 353. Mr Oderberg relied on R v Lum Wai-ming[2] and the fact that s 47(1)(c) has since been repealed.

18.  In the magistrate’s statement of findings at paragraph 16 to 18 was the following : -

“16. Under section 47(1)(b) of the Dangerous Drugs Ordinance, any person who is proved to have had in his physical possession the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug, shall, until the contrary is proved, be presumed to have had such drug in his possession. (2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, unless the contrary is proved, be presumed to have known the nature of such drug.

17. In the present case, the appellant did have in his physical possession a key to the target vehicle; a large quantity of cannabis in herbal form was stored inside the car trunk; he did access to the trunk and what he could see right away as soon as the trunk was opened should be as depicted by exhibit P39(13); the trunk was full with many bags at the forefront of the trunk. Those bags were not sealed and one white colour plastic bag was open, the contents inside was readily visible. According to PW1 and PW2’s evidence, a strong irritate smell emerged as soon as the trunk was opened. Also according to their evidence, after the appellant opened that trunk, he lingered there for somewhat two minutes, he leaned forward and both hands were inserted into the trunk. When they decided to take action by leaving their hiding place and walking up to the appellant, announcing they were customs officers, the appellant immediately closed the trunk and ran. It means the appellant was startled by those customs officers all of a sudden and fled hastily. If he was there for the purpose of repairing his vehicle, such allegation was absolutely un-supported. It can be seen in the same photo i.e. exhibit P39(13), there were no tools in sight inside the trunk nor any sign of searching for tools that would support his allegation. It is un-surprising to me for PW1 or PW2 paid no heed to the explanation offered by the appellant and did not bother to ask the appellant any questions about the appellant’s allegation of going there for car repairing. Obviously they did not believe him. I also took into consideration the car owner’s evidence. She had lent the two vehicles in question to her niece for a few months ago and there were one key for each vehicle. That means her niece had had the use of the two vehicles for a period of time. At the material time the appellant was the boyfriend of the car owner’s niece. The two were together at the time of the incident. The target vehicle was apparently used as a storage. The appellant was the only one in possession of the key for the target vehicle. The key could open the car trunk where a large quantity of dangerous drugs were kept. The appellant alone approached the target vehicle, opened the car trunk and doing something there. Although it is not known what he was actually doing behind the opened car trunk, he must be looking at a large quantity of dangerous drugs right in front of his eyes, he was leaning forward with both hands inside the car trunk for some time albeit for a couple of minutes or less. I am satisfied the appellant knew the dangerous drugs were there, he had the control of the target vehicle and the dangerous drugs inside. Although there is no evidence before the court what he was actually doing at the trunk for a minute or two after he opened the trunk, I have no hesitation to reject his explanation that he was there for repairing his vehicle. What he was doing must be something to do with the dangerous drugs inside the trunk.

18. For the above findings, I found the appellant not guilty of trafficking in a dangerous drugs but I am satisfied beyond all reasonable doubt that he was in possession of dangerous drugs.”

19.  The previous s 47 of the DDO Ordinance was as follows: -

“47. Presumption of possession and knowledge of dangerous drug

(1) Any person who is proved to have had in his physical possession -

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage briefcase, box, case, cupboard, drawer, safe-deposit box safe or other similar container containing a dangerous drug;

(c) the keys of any motor vehicle containing a dangerous drug shall, until the contrary is proved, be presumed to have had such drug in his possession.”

20.  The present s 47 of the DDO stipulates that :-

(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

(c) (Repealed 62 of 1994 s. 6)

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.

21.  The previous s 47(1)(c) provided that a person who is in physical possession of keys to a motor vehicle containing dangerous drugs is presumed to have possession of the drugs.  There is no such stipulation in the present section. Specifically the keys of any motor vehicle containing a dangerous drug have been removed to prove a presumption of possession.

22.  Mr Oderberg submitted that the magistrate erred as he relied on the car key to find the appellant to be in possession of the drugs under s 47(1)(b). He submitted that having the keys of a car to prove possession of drugs was repealed and it was wrong for the magistrate to consider that the boot of a car fell within one of the euisdem generus interpretation of containers therein as he was in effect reviving the repealed s 47(c). 

23.  Section 47(1) provides that any person who has in his physical possession anything containing a dangerous drug or keys of those containers shall be presumed to have had such drug in the container in his possession. 

24.  Mr Nicholas Wong Senior Public Prosecutor submitted that the target vehicle was a static object at the material time, it therefore fell within the ambit of the “other similar container” in s 47(1)(b).  The cannabis was contained in the boot of the target vehicle, the target vehicle was a container per se and in a narrow sense, the boot was also a sub-container. 

Discussion

25.  The car keys which open a boot to a car which is stationary as submitted by the respondent do not, in my view fall within the description of a “similar container.”  In terms of comparison with the items referred to in s 47(1)(b) a boot of a stationary car cannot be so widely read and regarded as a “similar container” within the ambit of the section. 

26.  In Lum Wai Ming Deputy Judge Burrell (as he then was) stated the following when considering why keys were mentioned separately in the subsections b and c :-

“I observe at the outset that sub-s. 1(b) also refers to keys of specified things such as boxes, drawers and so on. It is tempting to ask the question - why have a separate subsection for the keys to a motor vehicle and why not simply add a motor vehicle to the list in sub-s. 1(b). I hazard the following answer. The key to a box etc. is for the purpose of keeping the contents of the box safe and/or hidden. The key to a car is to keep the car itself safe and to ignite its engine so as to propel it. A car per se is not a thing for storage but a thing for transportation. Therefore different considerations apply.

A man can be nowhere near his car but still have the keys in his pocket. Many people can have the keys to a single car but only one person at a time can drive it. The provision relating to the keys is therefore wider than one relating to the vehicle itself and creates a greater jeopardy to a person caught by it.

……

The section (referring to s.47(c))clearly does catch the man sitting in a restaurant in Kowloon with a bunch of keys in his pocket, when his vehicle, whether it be a car, a taxi or a light goods vehicle is parked on Hong Kong Island. In my judgment the Court of Appeal's findings in Sin Yau-ming in relation to the keys to flats and premises provide some assistance when considering vehicles. Mr. Bailey rightly says a car is a very different thing from a flat. Indeed so, but when it comes to considering the risks facing the key holders the dissimilarities are not so great.

Of the repealed section Silke, V.-P. said,

"I can find no justification on the evidence of the Crown for these presumptions They catch and force to rebuttal an ordinary inhabitant of an apartment house who has the keys to the front door."

Making a similar criticism of the new s. 1(c) would only be a matter of degree. I can find no justification for this presumption. It catches and forces to rebuttal any ordinary person carrying car keys wherever the car may be. In Hong Kong many vehicles, and I have in mind in particular, taxis and light goods vehicles, have a variety of different key-holders and drivers and an endless variety of passengers. Under the old law a key-holder of premises was at risk from a visitor leaving drugs behind, so a key holder of a vehicle is at risk from a passenger in that vehicle.

……

The normal situation which the new provision is intended for is not significantly different from the type of situation which was caught by its predecessor. "Anything containing a dangerous drug" has meant things like plastic packets, and shopping bags and so on, in other words the immediate container or receptacle (my own emphasis added).”

27.  I agree with the observation of Deputy Judge Burrell (as he then was). A similar container in s 47(1)(b) denotes the immediate container or receptacle containing the dangerous drugs.  In the instant case the bags containing the cannabis and the cocaine were the immediate containers not the boot. 

28.  In the circumstances I am of the view that s 47(1)(b) and 47(2) of the DDO presumption of possession and knowledge is not applicable on the facts of the instance case. 

Did the magistrate apply the presumption in s 47 to presume possession and knowledge in the instant case?

29.  Despite the magistrate referring to the s 47 presumptions in paragraph 16 of his statement of findings, upon reading the full context of the statement of findings he did not specifically state that he relied on the presumptions in arriving at his verdict. 

30.  On top of the s 47 presumption at paragraph 17 of his statement of findings, the magistrate was in fact satisfied that the only reasonable and compellable conclusion to draw from the circumstantial evidence was that the target vehicle was used as a storage of dangerous drugs and the appellant had possession and control of the dangerous drugs inside the target vehicle and he knew they were dangerous drugs.  The magistrate set out clearly the circumstantial evidence he relied upon as follows:-

(i) the appellant did have in his physical possession a key to the target vehicle;

(ii) the appellant used the key in his possession to open the boot;

(iii) he alone accessed and opened the car boot;

(iv) a large quantity of cannabis in herbal form was stored inside the car boot;

(v) the bags were not sealed;

(vi) the contents of the bags were readily visible when the boot was opened;

(vii) according to PW1 and PW2’s evidence, a strong irritate smell emerged as soon as the boot was opened;  

(viii) after the appellant opened the boot, he lingered there for some two minutes;

(ix) he leaned forward and both hands were inserted into the boot;

(x) he was startled when the customs officers approached him, he shut the boot and fled;

(xi) the car owner of the vehicle lent the two vehicles in question to the appellant’s girl friend.  There was only one key for each vehicle;

(xii) the appellant was with his girl friend at the time of the incident;

(xiii) the appellant was the only one in possession of the key;

(xiv) when the appellant opened the boot, he must be looking at a large quantity of dangerous drugs right in front of his eyes, he was leaning forward with both hands inside the car boot for approximately a couple of minutes.  

31.  The magistrate found that the appellant was doing something to do with the dangerous drugs inside the boot.

32.  The magistrate was entitled and properly drew an irresistible inference from the evidence to find that the appellant was in possession and control of the dangerous and knew that they were dangerous drugs in the boot of the target vehicle.  It follows that he rejected the appellant’s explanation that he was there for repairing his vehicle.  

33.  On the above facts, it is clear that the magistrate did not need to rely on the presumed possession in s 47 to prove that the appellant was in possession of the drugs or knew of the nature of the drugs in the boot of the car.

34.  A magistracy appeal is a rehearing as confirmed by Chow Shih Bin v HKSAR[3] in light of the available evidence the irresistible inference from the evidence was that the appellant was in possession and control of the drugs and he knew that there were dangerous drugs in the boot of the car. 

Ground 3

35.  It was the appellant’s submission that there may have been many car keys and not only one key therefore the magistrate erred in finding the appellant possessed the only key to the target vehicle. 

36.  At the trial the appellant did not give evidence and called no defence witnesses.  The only available evidence before the magistrate was the evidence from the car owner that there was one key for each car which she had given to the appellant’s girlfriend (her niece).  The girlfriend was present at the scene at the material time.  In the absence of other evidence at trial suggesting there were other keys, the magistrate correctly came to the finding that there was only one key to the target vehicle. 

Ground 5 and 6

37.  The appellant complains that the magistrate rejected the appellant’s explanation that he was at the scene for the purpose of repairing his vehicle as no tools could be seen in the boot and erred in holding that the custom officers did not need to ask for any information of the defect of the vehicle SM953. 

38.  Whether there were any tools visible in the boot was insignificant, the magistrate was entitled to reject the account given by the appellant on the evidence before him.  However when considering the appellant’s explanation as to his presence the magistrate had considered the evidence not only of what was visible in the boot but also of the appellant’s actions when he was approached by the customs officers when he was at the boot and it was open.  He took note of the fact that when the customs officers announced their identity when they approached the appellant when he was at the boot of the car, the appellant immediately closed the boot and ran.  He considered that the appellant was startled by the custom officers and fled.  He went on to say[4]

“If he was there for the purpose of repairing his vehicle, such allegation was absolutely un-supported….. ”

39.  The magistrate was looking at the facts as a whole.  Although not clearly expressed the preface to rejecting the explanation was in reference to part that the appellant was startled, immediately shut the boot and fled when the customs officers approached him.  The magistrate was ultimately expressing that the appellant’s actions were not supportive of the appellant’s explanation of being present for the purposes of repairing his vehicle. 

40.  The magistrate also considered the contents of the post record made in PW1’s note book.  PW1 post recorded the events that took place at the car park with the appellant.  This was admitted into evidence under s 65C of the Criminal Procedure Ordinance Cap 221 by the appellant and the prosecution.  At paragraph 14 in the statement of findings the magistrate observed that the appellant confirmed its contents.  PW1 asked the appellant “what did you come here for?” the appellant answered “I came here to fix the car.”  No further questions were asked of the appellant as concerns the fixing of the car.  Nothing turns on the sixth ground of appeal.  There was no requirement that the customs officers make enquiries from the appellant as to the defect of the vehicle the appellant was driving. 

Grounds 2 and 4

41.  Mr Oderberg submits that there was no evidence of knowledge, control or possession of either the herbal cannabis in the boot of the vehicle or in the storage box between the front seats.  There was no attempt to see whether the appellant had dealt with or touched the drugs in any way.  Possession and control of the drugs in the boot have been dealt with in ground 1. 

42.  As to this ground, proof of physical contact and/or interaction between the drugs in question and the appellant are not necessary to support an offence of possession of dangerous drugs. 

43.  After finding the cannabis in the boot, cocaine was found in the storage compartment inside the vehicle near the gear box.  During the surveillance by the officers the appellant was not seen to enter or go inside the target vehicle.  There was evidence that his girlfriend was originally given the target vehicle car key by the car owner.  The two drugs found were different in kind.  There was insufficient evidence on the facts to draw the irresistible inference that the appellant had possession of the cocaine in the storage box inside the vehicle.  In the circumstances the prosecution had failed to prove the appellant was in possession of the cocaine. 

Conclusion

44.  On the evidence in this case the prosecution had proved beyond reasonable doubt that the appellant was in possession of the herbal cannabis in the boot of the target vehicle but not of the cocaine which was inside the storage box inside the target vehicle. 

45.  For the forgoing reasons, the appellant’s conviction was neither unsafe nor unsatisfactory and the appeal is dismissed. 

46.  In light of the fact that the appellant was not in possession of the cocaine, if the appellant seeks to appeal against his sentence, leave will be granted to the appellant to appeal out of time.