Hong Kong Case Law: Decisions & Judgments

Topic

Presumption of possession

Legal area

Court

15 Apr 2014

ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

Citation

ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN
Court

Court of First Instance
Case number

HCMP3223/2013

The court dismissed both applications for leave to appeal because the trial judge's factual findings that the defendant's parents had been in adverse possession of the Portion from the 1950s for the requisite 20 years and that other parts had been abandoned since 1973 were not plainly wrong; the squatter bears the burden to prove adverse possession by cogent evidence; there is no presumption of continued possession in favour of a squatter; and the alternative 12-year claim from 1996 could not succeed on the facts.
19 Nov 2003

HKSAR v. LIU HSIU HSIANG

Citation

HKSAR v. LIU HSIU HSIANG
Court

Court of Appeal
Case number

CACC304/2001

The Court withdrew its earlier adverse comment that the trial judge's direction had no source, acknowledging the judge had relied on R v Lambert; the addendum corrects that error, records regret, and holds that whether Lambert applies in Hong Kong and affects s.47 Cap. 134 remains an open question not determined on this appeal.
13 Jun 2003

HKSAR v. CHUNG KING KUI

Citation

HKSAR v. CHUNG KING KUI
Court

Court of First Instance
Case number

HCMA448/2003

The appeal was allowed because the magistrate erred in finding the presumption of possession under s24 applied to the appellant who had given credible evidence she had retired and was not carrying on the business so the presumption did not arise or was rebutted; and s33(2) could not be used to attribute an employee's knowledge to the appellant because that subsection applies to proceedings for or in connection with sale/exposure for sale or supply, not a pure possession charge under s23(1). Consequently the conviction could not be sustained.
24 Jul 2002

CHAN MING FAI v. HKSAR

Citation

CHAN MING FAI v. HKSAR
Court

Court of Final Appeal
Case number

FAMC27/2002

Considering the summing-up as a whole, it was not reasonably arguable that application of the proviso was so serious a departure from accepted norms as to constitute substantial and grave injustice; therefore leave to appeal was refused.
31 Aug 1994

CHING KWOK WING v. R.

Citation

CHING KWOK WING v. R.
Court

Court of Appeal
Case number

CACC4/1994

The judge's failure to instruct the jury on the legal definitions of possession and trafficking, to explain the statutory presumption under s.47 and to give guidance on when quantity supports an inference of trafficking constituted a material irregularity rendering the conviction unsafe; accordingly the appeal is allowed, conviction quashed and retrial ordered.
22 Feb 1994

THE QUEEN v. WONG KWOK KEUNG

Citation

THE QUEEN v. WONG KWOK KEUNG
Court

Court of Appeal
Case number

CACC345/1992

The summing-up contained a material misdirection by implying or creating an onus on the defendant to disprove knowledge of the contents of a locked tool-box; given the factual distinction (locked box, absence of key) and the absence of reliance on the statutory presumption, the inference of possession equating to knowledge was unsafe and the conviction had to be quashed.
27 Feb 1991

THE QUEEN v. POW PO WO

Citation

THE QUEEN v. POW PO WO
Court

Court of Appeal
Case number

CACC447/1990

Conviction quashed because the judge's summing-up risked leaving the jury with the impression the sole issue was a straight contest between witnesses rather than the lower evidential onus on the defendant to show, on the balance of probabilities, that she did not know the drugs were in the container; the defective direction made the conviction unsafe.
28 Dec 1990

THE QUEEN v. LEE WAI KEUNG, DICKIE AND ANOTHER

Citation

THE QUEEN v. LEE WAI KEUNG, DICKIE AND ANOTHER
Court

Court of Appeal
Case number

CACC317/1989

The judge misdirected the jury by explaining 'balance of probabilities' as requiring proof only by 'credible belief' of witnesses and by implying the jury had to believe the defendants personally before finding the presumption rebutted; that explanation risked raising the accuseds burden above 'more likely than not' and rendered the convictions unsafe. Consequently the appeals were allowed, convictions quashed and sentences set aside. The separate challenge to chain of custody failed because the officer's uncontradicted evidence that the drugs remained in his custody was sufficient to maintai…
25 Jul 1990

THE QUEEN v. MOK KOU CHAI

Citation

THE QUEEN v. MOK KOU CHAI
Court

Court of Appeal
Case number

CACC59/1990

The trial judge's rejection of the appellant's evidence was open on the record; even accepting some possibility of planting, the appellant failed to prove he did not possess the drugs and there was no basis for the appellate court to overturn the conviction.
23 May 1989

THE QUEEN v. TONG LEE PING

Citation

THE QUEEN v. TONG LEE PING
Court

Court of Appeal
Case number

CACC553/1988

The conviction must stand because the trial judge accepted prosecution evidence that the drugs were found in the applicant's cubicle, the applicant's contrary account was disbelieved with reasons given, the statutory presumptions under Sections 46 and 47 were raised and not rebutted, and there was no basis to find counsel's conduct prejudiced the defence; accordingly leave to appeal is refused.