THE QUEEN v. CHAN WAN PING AND ANOTHER

----------

-----------------

JUDGMENT

-----------------

Silke, V.-P.:

1. This is the judgment of the court.

2. On 19th February 1990 Chan Wan Ping - "D1" - and Chan Hon Fai - "D2" - were convicted after joint trial. before His Honour Judge Yam in the District Court of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. The particulars of the offence alleged that they had in their possession, at Room 1, 3rd floor, No.29 Ho Pui Street,Tsuen Wan, Hong Kong,70.07 grammes of a mixture containing 4.2 grammes of salts of esters of morphine.

3. On 6th March 1990, D1 was sentenced to 4 years' imprisonment and D2 to a conditional discharge upon entering into a Bond of good behaviour for one year the sum of $1,000. Both were represented at trial. Botn sought leave to appeal against their convictions.

4. After an adjournment for the provision of the transcript, which became a lengthy one because of matters concerning D2 to which we shall refer in a moment, this matter finally came on for hearing oh 31st January 1991. We refused both applications and stated we would hand down our reasons later. This we now do.

5. When it came to the sentencing process, the trial judge had before him a psychiatric report in relation to D2. He had noticed oddities in the court of the trial in D2's. behaviour. He described him in his Reasons for Verdict as giving the impression "that he dial hot know what he was talking about and would make out anything that came to his mind."

6. Having considered the report he said this:

"Should such a report be available [at trial] before the Court, I would be mined to accept that he had rebutted the statutory presumption or at least to give him the benefit of the doubt.''

7. Numerous attempts have been made to ensure the attendance of D2 before this court, none of which have been, successful in their endeavour. He was offered legal aid but did not take up that offer which, consequently, lapsed. He was fully aware of this hearing and he was fully aware that papers were available to him for collection but he has not seen fit either to appear or to collect those papers. Personal contact ran from 28th November 1990 to 17th January 1991. As he has failed to prosecute his appeal, his application in respect of conviction was refused.

8. Mr. Grounds who appears for Chan Wan Ping, D1, originally advanced three grounds of which the first had two sub-grounds (a) and (b). Being now in possession of the transcript he accepts that it is not open to him to argue either of the sub-grounds of ground 1 which related to an alleged failure by the judge to direct himself upon the issue of possession and, further, that the mere knowledge of the existence of drugs does not mean a failure to rebut the presumption of their possession.

9. Mr. Grounds does, however, advance the other two grounds, the second of which is the roll-up ground of unsafe and unsatisfactory. The first relies on a passage at the conclusion of the Reasons of the trial judge which Mr. Grounds allies with the unsatisfactory state of the mental health of D2 who was stated in the psychiatric report to which we have referred, to be a schizophrenic subject to hallucinations.

10. What the trial judge said was this:

"There is no doubt in my mind that the 1st and 2nd Defendants knew perfectly well of the presence of the packages inside the room, they were both in possession of it and they just tried very hard to save their Musk in by blaming one another." (Emphasis supplied)

11. It is perhaps unfortunate that, noticing the unusual behaviour of D2, the psychiatric report was not called for at an earlier stage.

12. The evidence before the trial judge was to the effect that on 23rd March 1989 at about 11:15 a.m. a police party raided the premises at No.29 Ho Pui Street. They found D1 sitting on a bed upon which D2 was sleeping. A search of the room began and in the course of it D1 indicated to one of the police officers that there was no need to search any longer the "things" were, he indicated, in a gramophone. When the gramophone was itself searched there was found a red polythene bag containing a number of other bags which contained the drugs in question. D1 on being questioned admitted that the contents was "white powder".

13. In his defence D1 denied that version of the evidence given by the police officers. He said that was innocently there to repay a loan which he owed to D2. He was not believed.

14. The trial judge accepted the evidence of the police and made a positive findings that D1 was "in possession of dangerous drugs, he having admitted it and led the police to it himself". This was a finding which was fully open to him upon the evidence. We do not think him to have detracted from that finding by the passage we have cited earlier and upon which Mr. Grounds relies as indicating fallacious reasoning leading to the conviction. Nor do we, despite D2's mental health and the part he played in the trial, conviction the conviction of D2 to be unsafe or unsatisfactory.