THE QUEEN v. YUEN SIU WAH AND ANOTHER

IN THE COURT OF APPEAL

1987. No. 438
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. Yuen Siu Wah and Wong Siu Ling were charged with three counts jointly. The first being that of possession of dangerous drugs for the purpose of unlawful trafficking; the second: possession of equipment fit and intended for the injection of dangerous drug and thirdly: another count of possession of dangerous drugs for the purpose of unlawful trafficking. This last related to tablets of methadone and other chemicals.

2. The drugs concerned in the first count were salts of esters of morphine which was contained in a mixture of 235.83 grammes.

3. The two inhabited in a flat which was owned by Yuen. Yuen was seen leaving the flat on 20th March 1987 late in the evening. He was stopped and searched and keys to the premises were found upon him. He was brought back to that flat and it was searched. There was controversy as to whether the search began he fore be was brought back up or after he had been brought there. The trial judge resolved that by saying that he did not believe the evidence that the search started first.

4. The flat consisted of a sitting room and two cubicles. One on the right hand side and one on the left hand side of that sitting room. The right hand cubicle was the first one which was searched and on a bed in that room, covered by a blanket, was found an orange coloured plastic bag and in that was a polythene bag wrapped in newspaper. This contained drugs. There was a general search of that cubicle and a large number of items relating to the trafficking in drugs were found such as a porcelain spoon and four syringes; pairs of scissors; rolls of adhesive tape; polythene bags in substantial quantity; two sets of scales, one being described as a postal scale and one being described as a plastic scale; a lighter and a pager, and Po Chai Pill phials. A number of these items, including the postal scale, had traces of dangerous drugs.

5. In a drawer was found $15,690 in cash. Also there were found management receipts in Yuen's name; telephone bills also in his name; a seamans card and matters relating to his previous occupation as a seaman and his bank books. Also bank books in the name of the 2nd Defendant.

6. It was the 1st Defendant's defence that he knew nothing of these drugs; that he inhabited mainly the sitting room; that he had let the cubicle on the right hand side to the 2nd Defendant. The 2nd Defendant's defence basically was that these drugs were all for her own consumption, she being ill and a drug addict. She had purchased them in large amounts because she found them difficult to get.

7. Yuen's bank books showed large deposit at various times prior to his arrest and these were matters which the judge took into consideration generally in considering his gui1t or innocence. There has been criticisms of his evaluation of the non-explanation by Yuen of these amounts but the judge was entitled to consider them in the general context of the charges. That evidence would not, of course, have been of itself sufficient to show guilt.

8. Mr. Remedios who appears for the 1st Defendant concedes that the evidence, if seen to have been properly considered, would have been sufficient to ground the conviction on the possession charge. The difficulties which have arisen stem from the unsatisfactory way in which the trial judge set out his Reasons for Verdict and the contents of those Reasons.

9. While it was not fully apparent in the Grounds of Appeal filed by Mr. Remedios, his real complaint, and one which we permitted him to argue, was that the trial judge failed to be seen to have properly evaluated the evidence together with the effect of the several presumptions which arose concerning Yuen and the 2nd Defendant. The presumption for consideration in respect of Yuen was that of possession of dangerous drugs and that presumption certainly arose. The one in respect of the 2nd Defendant was possession of drugs, which possession she admitted, for the purpose of unlawful trafficking and the quantity certainly raised that presumption.

10. At first blush, the Reasons gave the appearance of eliding these two presumptions when considering the guilt or innocence of Yuen. Complaint is also made that, the 2nd Defendant having given specific evidence that the drugs were hers for her own consumption and had nothing to do with the 1st Defendant, this was not taken into consideration when the issl1e of the rebuttal of the presumption by Yuen arose.

11. It is, however, clear to us that the trial judge did have in mind the 2nd Defendant's evidence as to her exclusive possession for he considered that evidence on the third count upon which both of the Defendants were acquitted. On that it was her evidence first that those pills which were found were hers and secondly that she had them properly in her possession. The trial judge accepted both of those propositions and it would be difficult to hold that an experienced judge would have failed to consider her evidence as to her exclusive possession of the other drugs which specifically related to the first charge when he had clearly considered similar evidence in relation to the third charge. We accept however that the manner in which the Reasons for Verdict were set out does give rise to the arguments that Mr. Remedios has raised in relation to this. His argument is, to some extent, supported by that which the judge had to say as to the second charge - the possession of instruments - for on this in relation to Yuen he said:

"He has failed on the balance of probabilities to rebut the presumption on the first charge and is convicted on the first and second charge."

This gives the appearance of raising a presumption which did not exist in respect of the second charge and no other reasons were given for the verdict.

12. The reality may well be that the judge, having found the actual presumption unrebutted on the first charge and, based on the evidence as it stood, he simply went on to consider ordinary possession of the instruments. We think that insufficient consideration was given to the second charge and that the conviction on that charge is unsafe and unsatisfactory.

13. Had the Reasons for Verdict clearly set out the basis for conviction which is manifestly implicit in them and which stems from the evidence at trial itself, it is unlikely that this matter would have come upon appeal. The issue is: Can the conviction on the first count stand? We think that it can. On the evidence before him the trial judge was perfectly entitled to come to the conclusions he did and it must be considered as implicit in those Reasons that he rejected the 2nd Defendant's assertion of exclusive possession. We do not find the conviction on the first charge to be either unsafe or unsatisfactory. We, therefore, grant leave to appeal, dismiss the appeal on the first charge and allow the appeal on the second charge.

Sentence: D2

14. Wong Siu Ling seeks leave to appeal against the sentence passed upon her of first, five years for possession of dangerous drugs for the purpose of unlawful trafficking and second, one month concurrent for possession of equipment intended for the injection of a dangerous drug.

15. Given the quantity of the mixture concerned which was 253.83 grammes, a sentence of five years is in line with the general guidelines set out in Chan Chi Ming[1]. What Madam Wong, who is now aged about 58, relies upon is her ill health and there was evidence of that given in the course of the trial itself which the sentencing judge took into consideration. He said this:

"Whilst having sympathy with the Second Accused in her suffering with rheumatism the Court was confident that under the excellent medical facilities provided by the Correctional Services Department she would probably receive better treatment than obtainable in an ordinary Government hospital."

16. Ill health is not a matter for mitigation of a perfectly proper sentence though it may well be a matter for the Executive in relation to a consideration of that sentence if it is brought to their attention and deserves such consideration. The sentence in the circumstances of this case was a very proper one and the application for leave to appeal against it is dismissed.