THE QUEEN v. CHAN CHOR YAM

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Applicant seeks leave to appeal against her conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. She is a young woman, who was married to the other Defendant in the case. The police carried out a raid on a very small flat. The 1st Defendant was seen to throw a packet out of the window and also to be handling packets which were found to contain dangerous drugs. He has not appealed and there is no doubt that he was in possession of these drugs. The Applicant was found in this very small flat sitting down and holding a baby. The only other evidence which possibly connected her in any way with the drugs as a fingerprint of hers on a bulldog clip which could have been used for the purpose of sealing plastic packets of drugs.

2. The District Judge was satisfied that the Applicant's evidence that she did not know of the drugs in the flat was false. From that he went on to say that he was satisfied beyond reasonable doubt that she with her husband, was jointly in possession in the sense of custody and control. With respect to him we think this was wrong and that knowledge, although an element in possession, is certainly not to be equated with possession. Mr. Westbrook has relied upon the decision in TAM Siu-kee v Reg. Crim. App. 1969 No.633, which was in many respects similar,and in particular he relies upon a passage in the judgment of the late Mr. Justice Pickering where he said:

"All that the Crown has demonstrated in regard to these two appellants is knowledge of the existence and whereabouts of the drugs but such knowledge does not of itself put them into possession. The circumstances were certainly suspicious but as has been said ad nauseam suspicion is not enough."

We need do no more than re-iterate those words, with which we entirely agree. This Applicant was not proved to be in joint possession and the application must be allowed. The Crown did not seek to argue that any presumption arose under the Dangerous Drugs Ordinance.

3. Treating this as the hearing of the appeal we allow the appeal, quash the conviction and set aside the sentence.

14th August 1986