THE QUEEN v. CHU MOK YUEN

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JUDGMENT

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McMullin, V.-P. :

1. CHU Mok-yuen and LAM Man-yau were tried in the District Court for possession of dangerous drugs for the purpose of unlawful trafficking. CHU, the present applicant, was convicted and LAM was acquitted after trial.

2. The evidence for the prosecution is borne principally upon the testimony of a party of Customs Officers who were carrying out surveillance duty in the vicinity of Block 30, Tze Wan Shan Estate. Three of these officers, one of them being PW2, a female Customs Officer, described seeing the first and second defendants emerge from the building, the 7th floor of the building Block 30, at about 5:00 p.m. on the 28th of February 1985.

3. PW2 was in her pose on the top of a nearby building and in company of an inspector from the same department. They were, it appears, both equipped with binoculars, but the evidence disclosed that she at least did not feel it necessary to make use of the binoculars in the course of her surveillance duty.

4. Two other Customs Officer were in position at the base of the building near a carpark which was between Block 30 in the Block from which PW2 and her colleague were keeping watch.

5. The several Customs Officers described how the two men entered a taxi at Wan Wah Road near Block 30. PW2 and PW3, one of the observers on the car-park level, said that they saw that the first defendant, the present applicant, was holding a parcel or packet about the size of a cigarette carton wrapped in red coloured floral paper.

6. Several of the Customs Officers followed the taxi in their own car and intercepted it at the junction of Hammer Hill Road and Lung Cheung Road. The two defendants were then found seated in the rear of the taxi and the floral packet was resting upon the seat between them. This was opened in their presence and a quantity of material suspected to be dangerous drugs was found within a polythene bag, itself contained within a Kent cigarette carton within the wrapping.

7. The men were cautioned and searched and a sum of $33,600 odd was found in several of the trousers pockets of the applicant. He was addressed by one of the officers and said that he had seen this parcel on the floor of the cab when he got in. It was tucked, he said, under the left front seat, and he was thinking of telling the driver of the cab about this, but, evidently, he had not got round to doing that at the time that they were intercepted.

8. The driver said that the two defendants were the second fare he picked up that afternoon after he began his workshift. He said that he had cleared out the cab before starting off and that no such parcel was found within it. He also said that the cab was so constructed that something could not be tucked underneath the front seat.

9. The applicant gave evidence. He told the court that he was the proprietor of a trading company selling goods, mainly video tapes, to China. He said he had spent the night of the 27th at parent's home in Room 621, Block 30, Tze Wan Shan Estate, his parents then being away in China. He and a younger brother and his wife were present there on the night of the 27th over to the 28th. On the 28th he went very early in the morning to help his younger brother with his wholesale seafood business in Lai Yue Mun. He said he worked there until 8:00 a.m. He then borrowed a sum of $30,000 from his brother to purchase video tapes. Subsequently, before he returned home, he rang a Mr. Leung who has a shop at Lam Tin and made an appointment to go there between 4:00 and 5:00 p.m. to buy roughly $30,000 worth of tapes. He said he then returned to Room 621 of the Tze Wan Shan Estate where he went to bed and slept. He was roused by his brother's wife shortly after 4:00 p.m. He took the money in a red plastic packet which was, he said, too big to be placed within his pocket so he had held it in his hand and left he premises. Outside he met the second defendant on his way down. This was a chance encounter, although the second defendant was a person whom he had known for some time and who lives in the vicinity of Block 30. The second defendant was on business of his own, which would take him close to Lam Tin, where the applicant was going to buy his tapes, so they agreed to meet later for tea. They then took a taxi and on getting in and opening the door, he saw the floral packet tucked under the front left seat. He thought that it was rubbish when he put his foot upon it. The taxi then drove off and they were stopped at the traffic lights and the Customs Officers came up, opened the door and accused him and his companion of being possession of dangerous drugs. He said they picked up the floral packet and opened it and said that it was dangerous drugs. He and D2 were then both arrested and searched. He was taken to his home where there was a further search which revealed nothing of interest to the arresting party.

10. In the course of the first defendant's evidence when he was being cross-examined, the judge found that the evidence led in support of the case against the second defendant was insufficient and he was acquitted at that point and discharged.

11. The applicant's brother and Mr. Leung, the seller of the video tapes, also gave evidence which, generally speaking, supported the testimony of the applicant. The judge believed D1's story in part and said that he would not draw any adverse inference from the discovery of the money in his possession. But he accepted the evidence of the Customs Officers to the effect that the first defendant was seen from the outset holding the floral packet in his hand. He therefore convicted upon that evidence.

12. The decision was given on the 6th of June and grounds of appeal were filed on the 21st of June against conviction and sentence. Those grounds, insofar as they related to the conviction, dealt principally with the alleged unreliability of the evidence of PW2, the female Customs Officer, in purporting to identify the packet in floral paper as being the same packet that she had seen from the outset, and which was subsequently recovered in the taxi, having regard to the distance between the place in which she was positioned and the nearest and farthest points at which she had seen the applicant.

13. Mr. Keane, who appears today together with Mr. CHU Tak on behalf of the applicant, seeks leave to adduce a further ground of appeal and also to adduce fresh evidence under Section 83B(1)(c) of the Criminal Procedure Ordinance. The purport of this evidence which, he said, if adduced, would be to fortify the submission that the evidence of PW2 was unreliable, is that her observations were made at distances greater than those which she alleged when giving evidence.

14. Mr. Keane accepts full responsibility for the late filing of the additional ground and also for the late filing of the list of authorities upon which he sought to rely. He frankly admits that he is in breach of the practice direction relating to the list of authorities, and also that this fresh ground, being as he has informed us by way of a last minute inspiration, falls subject to the many critical observations made by this Court, and by the Full Court in former years, as to the need to have grounds of appeal submitted both to the other side and to the Court in good time. We have been referred to some decisions in that regard. On one occasion Mr. Justice Blair-Kerr suggested that the grounds of appeal should be submitted some four days prior to the hearing. These many admonitions notwithstanding, this Court is all too frequently confronted by lists of authorities and grounds of appeal tendered on the very morning of the hearing. In the present instance counsel for the Crown did not apply, as he might well have done for an adjournment and we were fortunately able to proceed.

15. We have heard counsel's argument in support of this new ground which is to the effect that the learned trial judge did not refer, in his reasons for verdict, to the aplication of any presumption pursuant either to Section 47(1) or to Section 46 of the Dangerous Drugs Ordinance Cap. 134. It is said therefore that it must be inferred that he convicted the applicant without reliance on either of such presumptions, and that without recourse to such presumptions there was no sufficient reason given for the conclusion of the learned trial judge that the applicant was in possession of the contents of the package for the purpose of unlawful trafficking.

16. The particular findings of the judge to which exception is taken in this regard are couched as follows. Having dealt with the evidence which he found sufficient to prove that the applicant was in possession of the floral packet throughout the period of surveillance, the judge went on to say:

"I found as a fact to the required standard that the defendant was in possession of the package a presumption would arise that he knew its contents to be the drugs described in the charge and it would be for him to rebut that presumption on the balance of probabilities.

Finally at the conclusion of his reasons for decision he said:

17. We accept that it is highly desirable in a dangerous drugs case for a judge, in giving his reasons, to make it clear whether or not he is specifically relying on any particular presumption such as those contained in Sections 46 and 47 of the Dangerous Drugs Ordinance. However we do not find it necessary in the present case to say whether this Court ought to regard itself as bound by the earlier decisions of the Full Court to the effect that, where the judge has not done so, the Appellate Court must necessarily proceed upon the basis that the trial judge has not had regard to the relevant presumptions. We are satisfied that in the present case, and despite the loose and unahppy language employed by the District Judge in dealing with the matter - and notwithstanding that he specifically refers only to the presumption as to the exact nature of the dangerous drugs found in the floral packet, that is the presumption under Section 47 sub-section 3 - he must have been considering the proved facts of the applicant's possession of that packet in the light of all the relevant presumptions in Section 47(1)(a) and also of the trafficking presumption in Section 46.

18. It must be said that even if we were not satisfied that he had resorted to the presumptions in this way we would certainly be prepared to apply the proviso and to say that on these short and simple facts all the relevant presumptions were indeed raised, and that nothing in the evidence given by the defendant could be said to have had the effect of rebutting them.

19. Furthermore even had the judge been considering the effect of the evidence without the benefit of any of the presumptions, and in particular of the presumption as to knowledge under Section 47(1)(a), we could not accept the contention that he was then at fault in not considering, as an alternative line of defence, the fact that there was no direct evidence to show that the defendant was aware of the contents of the packet. It must be remembered that the defendant's story was simply that he was not in possession of the packet at all, and there was nothing in his evidence to support the idea that he had any connection with it such that the state of his knowledge in relation to its contents became a relevant issue.

20. We are satisfied that the additional evidence which it is now sought to introduce, and the nature of which we have considered, de bene esse, as it is revealed in the affidavit of Mr. HO Siu-keung, is of no such compelling character that we would, in any event, have felt obliged in the interests of justice to admit it.

21. It is unnecessary therefore to deal with counsel's submission regarding the relationship between sub-section 1 and sub-section 2 of Section 83(v) which raises a point of interest, and perhaps of some difficulty, having regard to the decision of the Court of Appeal in England and the case of Reg. v. Lattimore⁽¹⁾. That authority, based on identical provisions in the Criminal Appeal Act of 1968, undoubtedly lends some support to Mr. Keane’s contention that the failure to produce such evidence at the trial, when it could very readily have been produced, did not, when invoking the courts discretion, impose on him the duty of giving a reasonable explanation for its non-production.

22. We have thus dealt with the several submissions made by counsel. We are satisfied that on the facts so clearly found by the judge the conviction of the defendant was inevitable once his story had been rejected. The application to adduce fresh evidence and the application to adduce the additional ground are both refused. Likewise we refuse the application for leave to appeal against conviction. The application in relation to sentence has been abandoned.

(1) (1976) Cr. App. Rep. 53