THE QUEEN v. NIP WAI CHING

III THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 418 OF 1985

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BETWEEN

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JUDGMENT

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Penlington, J.

1. This is an appeal against a conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. Originally there was also an appeal against sentence but Mr. Plowman who appears for the appellant sought leave to abandon that appeal. That leave was given.

Background

2. The facts relied on by the Crown in this case were not in dispute as the prosecution evidence was entirely in the form of an agreed statement. That statement set out that a police party entered a small flat in Jaffe Road. Wanchai and there found two persons, one of whom is the appellant, sitting on a bed. Between them were 28 small plastic bags containing heroin. The other person, TANG Wai-hong, pleaded guilty to a charge of possession for the purpose of trafficking. Also found in the flat were various pieces of equipment for weighing and packaging dangerous drugs. A cigarette containing heroin was found in a drawer, empty po chai phials and other objects which would also indicate that smoking of drugs may have taken place as well.

3. One exhibit which was not referred to by the judge, but which is perhaps of some significance are 2 pairs of gloves. The appellant was in the flat for some three days and two nights, his fingerprints were not found on any of the apparatus. This is relied on as a ground appeal because a fingerprint of Tang was found on a weighing machine. While the finding of fingerprint is positive evidence, the absence of the fingerprint is simply a negative; it doesn't take the matter either way.

4. It was agreed that Tang was the tenant of the flat and that when the Police party entered the flat he was counting the packets of drugs while the appellant was watching.

The Evidence for the Appellant

5. The appellant's evidence was that he was a drug addict, that he had known Tang for a long time and Tang was involved in trafficking in heroin. Ho often went to Tang's flat in order to buy supplies. However, on this occasion he also stayed there because he was taking a holiday and he in fact spent virtually all of three days and two nights in the flat. He denied however that he was in any way involved in the trafficking operation, he was there purely as an addict to buy drugs and he smoked them in cigarettes on the premises, buying $50.00 worth each day. This evidence was supported by Tang, who said that it was his operation entirely and the appellant was not involved. Neither the appellant or Tang was believed by the trial judge. So far as the appellant's evidence was concerned he has set out in some details his reasons for disbelief and those reasons have been attacked by Mr. Plowman who has gone into these reasons in his usual careful manner. However it must always be a very difficult task at any time to convince a appeal court that, where a trial judge has disbelieved a witness, he was wrong and he should have believed him. We find the reasons given by the trial judge to be perfectly proper and their accumulative effect we think was ample for him to come to the conclusion that he did on the appellant's evidence. So far as Tang's evidence is concerned, he has not given such detailed reasons; he simply finds that Tang was endeavouring to protect his friend, the appellant. Again that is a finding from a judge who has heard the evidence, and we certainly do not think that we can disagree with him.

6. Having then found both the defence witnesses were to be disbelieved, the court was then faced simply with the evidence as presented by the Crown. There were two men sitting on a bed with substantial quantity of dangerous drugs between them and other apparatus for trafficking in drugs was in the flat. The other man was the tenant of the flat and his fingerprint was found on one item. That man was counting the packets while the appellant was watching. The appellant had spent the previous 3 days in the flat. Mr. Plowman has drawn our attention to other cases where appeals have been allowed from a finding of possession in circumstances inhere the appellants were found in premises or near to where the drugs were also found. In R. v. Downes 1984 C.L.R. 552 and R. v. Searle 1971 C.L.R. 592 directions which seemed to equate knowledge with possession were held to be defective. In R. v. FUNG Chi-ming and others. C.A. 674 of 1983 and R. v. TAM Siu-kee and others. C.A. 633 of 1969 it was held that presence with others in close proximity to where drugs were found was not under the circumstances of those cases, enough to prove that the appellants were in possession. However each case must be treated on its own facts and the evidence in each of those cases was certainly not as strong as it is here. The question is simply, was he judge, on the evidence that he had before him, able to come to the conclusion that he did. Having considered the evidence here he was satisfied beyond reasonable doubt that both the men in the flat were in a joint possession of the drugs. We do not think that a jury properly directed, could not have come to that conclusion. Each case must be considered on its own facts and here they were quite sufficient for the judge to come to the conclusion that he did. The appeal against conviction must be dismissed.