LEUNG SHU-CHOI v. THE QUEEN

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The Appellant, who was the 3rd Defendant in the court below, appeals to this court by leave of the single judge against his conviction. He and two others were charged with possession of dangerous drugs for the purpose of unlawful trafficking. They were stopped by the police when travelling in a motor car. This defendant was the driver: the other two were sitting one in the front and one in the back of the car. In the motor car were found two packets of dangerous drugs - apparently near the inside light in the roof of the car - actually not in the fitment itself but in the lining of the roof. Another packet was found in the waist-band of the 1st Defendant.

2. There are two basic grounds of appeal. The first relates to a refusal by the learned judge to allow the solicitor for the 3rd Defendant to call his client to give evidence after the close of the speeches by counsel for the Crown and the advocate for the 1st Defendant. There is no doubt that the judge had a discretion in the matter, and it matters not whether we would have exercised our discretion in the same way. The question is whether the judge wrongly exercised his discretion: that is to say whether he exercised it on wrong principles. It was suggested that the judge had some duty to explain to the 3rd Defendant what was the nature of the presumptions which might arise under the Dangerous Drugs Ordinance and it was further suggested that the judge misplaced the burden of proof as a result of his refusal to allow the witness to be called. The first point we think is wholly without any substance: there is no duty whatever on a judge to advise a defendant who is professionally represented. In this case the solicitor was obviously aware that there were presumptions under the Ordinance: he appeared for two clients and in respect of one of them he made a submission of no case to answer because there was no presumption. He asked for time to speak to the 3rd Defendant and it was only after that time had been given that the 3rd Defendant made his election not to give evidence. We see no reason at all to say that the judge was not entitled to refuse to allow the 3rd Defendant to give evidence at that stage in the proceedings. However, it is a matter which causes us concern that the learned judge said in his Reasons for Verdict that the presumptions were not rebutted by the defence. He thus appears to have placed the burden of proof to some extent upon the Defendant. It has been said on a number of occasions that a presumption can be rebutted by the evidence for the Crown and the learned judge did not apparently consider whether that had been done in the present case. That really brings us to the second point, because, although the 3rd Defendant did not give evidence there visa some evidence which raised the question whether the presumption was rebutted. The 1st Defendant was seen by the 2nd Defendant, and possibly by a police officer although his evidence is equivocal, to reach up towards the roof. He was also seen to be fumbling at his waist-band later on. The suggestion - and it is no more than a suggestion, mere speculation - was that the lst Defendant had all these drugs, had put two packets into the roof and was fumbling for the third packet with the intention of hiding it. The learned judge, as I say, did not consider this evidence. It is argued that, even if he had done so, it was impossible that such evidence could have rebutted the presumption. We say no more than that we are not satisfied that this verdict is safe and satisfactory and we think that the appeal ought to be allowed and a new trial ought to be had.

30th September 1982