CHAN CHING-CHI v THE QUEEN
3 June, 1965

Appellate Jurisdiction

AJ

(Criminal Appeal No. 261 of 1965)

Citations:
[1965] HKLR 598

Presiding Judges:
Huggins, J.

Phrases:
Criminal law and procedure – Criminal law – dangerous drugs – unlawful possession – plea of guilty – appeal against conviction out of time permitted – doubtful whether plea was unequivocal – appeal allowed – trial de novo

Facts:
The appellant, a first offender, had pleaded guilty to possession of dangerous drugs and sentenced by a magistrate. He appealed for a review of sentence which was refused. He appealed against sentence.

In support of his appeal he urged his innocence.

The Court granted leave to appeal out of time against conviction.

Held:

1. Although the appellant admitted the facts outlined by the prosecutor, there was no admission that he knew that the bags in his possession contained dangerous drugs;

2. The presumption of knowledge under section 15 of the Dangerous Drugs Ordinance, Cap. 134, was rebuttable;

3. There was some doubt whether the appellant appreciated that knowledge was an essential ingredient of the offence;

4. To eliminate the possibility of injustice it was desirable for a trial de novo.

Appeal allowed, new trial ordered.

Counsel In The Case:
Appellant in person.
N. R. Macdougall, Crown Counsel, for the Crown.

Cases Cited in the Judgement:
R. v. King’s Lynn Justices, ex parte Fysh, [1964] Crim.L.R. 143.
R. v. McNally, [1954] 2 All E.R. 372.
R. v. West Kent Quarter Sessions, ex parte Files, [1951] 2 All E.R. 728.

Details of Judgment:

Huggins, J.:-

HKLR 599

The appellant, a first offender, was sentenced to two and a half years’ imprisonment for unlawful possession of one ounce of diacetylmorphine hydrochloride. He appeals against sentence. In fact five days after the hearing he applied to the learned magistrate for a review of sentence but no review was allowed. The ground of the refusal to grant a review was that the ground of the application was one which did not commend itself to the learned magistrate, namely, that the appellant alleged he was not in possession of the drugs at all. The magistrate said that there had been an unequivocal plea of guilty and he was convinced that the application was merely a consequence of the appellant’s having received a greater sentence than he had hoped for. In his reasons and findings the learned magistrate has set out the well-known English cases of R. v. King’s Lynn Justices Ex parte Fysh ([1964] Crim. L.R. 143), the R. v. West Kent Quarters Sessions, Ex parte Files ([1951] 2 All ER 728), and the R. v. McNally ([1954] 2 All ER 372) as the basis of his decision.

Before me the appellant again urged his innocence in support of his appeal against sentence and I thought it right to give him leave to appeal out of time against his conviction so that I might consider the matter. The authorities cited by the learned magistrate are very clear but there is one aspect of this case which has caused me some concern. The charge, as I say, was unlawful possession of dangerous drugs and “possession” is a concept which causes difficulty even on occasions to lawyers. The magistrate has very reasonably emphasized that the appellant admitted the facts outlined by the prosecutor but, as recorded, they show only that two bags containing drugs were found in his pocket and that when cautioned he asked for a chance. There was no admission that he knew what the bags contained. Of course by virtue of s.15 of the Dangerous Drugs Ordinance possession of the bags would create a presumption that he knew the nature of the contents but it is a presumption which could be rebutted. The question is whether the appellant appreciated that knowledge was an essential ingredient of the offence. He may well have done so but what *600 he said upon the application for a review makes it just possible that all he meant to admit at the original hearing was that he had possession of the bags without knowing the contents. That would not be an unequivocal plea of guilty. Whether he would have been believed had he given evidence on the lines of his statement upon the review may be questionable but I cannot say that must have been disbelieved. The case is a doubtful one and do not criticize the learned magistrate for the view he took. Nevertheless, it is, as I have indicated, just possible that injustice could result and I think it would be desirable to put the matter beyond doubt by ordering a trial de novo. The appeal is allowed accordingly and in the circumstances J say nothing about the sentence which was imposed.