HKSAR v. KON KWOK CHEUNG

bjbj @Ea= Wey) Before: Hon Stuart-Moore V-P, Stock JA and Beeson J in Court Date of Hearing: 21 November 2007 Date of Judgment: 21 November 2007 Date Reasons for Judgment handed down: 27 November 2007 ___

J U D G M E N T ___ Hon Beeson J: (giving the judgment of the Court) The Applicant (D2) was charged jointly with another man (D1) with Trafficking in Dangerous Drugs, namely, 32.12 grammes of a solid containing 23.72 grammes of cocaine; 25.72 grammes of cannabis in herbal form and two Ecstasy tablets, being 0.32 grammes of 3,4 methylenedioxymethamphetamine. D1 pleaded guilty to the charge and this Applicant was convicted after trial before District Judge Whaley. The Applicant was sentenced on 19 September 2006 to five years and three months imprisonment. On 5 December 2006, the Applicant was granted bail by Cheung JA pending his application for leave to appeal against conviction. On 21 November 2007, the Applicant sought leave to appeal against conviction and having heard the application, we granted leave to appeal and treating the hearing as the appeal allowed the appeal against conviction. We advised that we would give our reasons at a later date and now do so. Police intercepted a car and found the Applicant sitting in the driver s seat with D1, the registered owner of the vehicle, in the front passenger seat. The Applicant was searched but no drugs were found on his person. Police claimed that the Applicant was wearing a shoulder bag slung across his chest which contained $12,830 in cash; a calculator; 2 laundry receipts; 6 Nokia mobile telephones and a

ballpoint pen. The defence contended that the police had found the bag on the floor between the two front seats; the judge accepted the evidence of the police officers. The police searched the vehicle and found the drugs, as particularised in the charge, hidden in three separate places. None of the drugs was visible to anyone in the vehicle, or looking into the vehicle. The herbal cannabis was found in a box in the boot of the car and D1 s thumbprint was found on a book in that box. A palm print of D1 was found on a paper bag inside a rucksack placed on the rear passenger seat. The largest quantity of drug was in the rucksack. The police arrested and cautioned the Applicant for the offence of trafficking and his response was, I have nothing to say . It was an admitted fact that movement records kept by the Immigration Department showed that the Applicant left Hong Kong for China on 8 March 2006 and had returned to Hong Kong on the 10 March 2006 at 1926 hrs, some three hours prior to his arrest. No fingerprints of the Applicant were found and no other forensic evidence linked him to the drugs. He made no admissions at the scene or later. Counsel for the Applicant made an unsuccessful submission of no case to answer at the conclusion of the prosecution case. The Applicant elected not to give evidence or call witnesses. Subsequently the judge reviewed the evidence, accepted the

police officers as truthful and reliable witnesses and found the Applicant guilty saying: In my view, the only reasonable inference to be drawn from the totality of the evidence before the court is that both the first and the second defendants were jointly in possession of dangerous drugs for the purposes of trafficking and they were in fact both jointly trafficking in those drugs at the time the vehicle was intercepted. Counsel for the Respondent, Mr Tam Sze-lok, sought to uphold this conviction on the basis that the Applicant was in control of the vehicle and that fact, taken in conjunction with the presence of a shoulder bag which contained articles that might be regarded as suspicious, meant that it was not unreasonable to conclude, in the absence of any explanation, that he was in possession of the drugs. We do not agree. There are undoubtedly situations where circumstantial evidence alone will enable a court to find joint physical or constructive possession on the part of one or more alleged offenders. This case was not one of them. The Applicant was in control of the vehicle only in the sense that he was driving it. It is not known when he began to do so, or in what circumstances. For all that is known, he might have taken the wheel a matter of moments before. This was a vehicle which belonged to D1, not the Applicant, and there was overwhelming evidence connecting

possession of the drugs with D1, most particularly the fact that he owned the vehicle and that his finger and palm prints were on items which were in close proximity to the drugs. The vehicle did not belong to this Applicant; there was no evidence of his fingerprints upon or near the packets containing the drugs and there was no other circumstantial evidence whatsoever from which an irresistible inference could be drawn that he was party to the possession of the drugs. The judge failed to explain the reasoning behind his conclusion, in particular what facts, taken together, drove him to say that the Applicant's possession of the drugs was the only reasonable inference to be drawn from the evidence. We were satisfied that there was insufficient evidence upon which to convict and, accordingly, we allowed the appeal. (M. Stuart-Moore) Vice-President (Frank Stock) Justice of Appeal (C-M Beeson) Judge of the Court of First Instance Mr Tam Sze-lok, SGC of the Department of Justice, for the Respondent Mr James P Chandler, instructed by Messrs S H Chan & Co, for the Applicant -

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