Police v Chan Chui - Judgment [2007] WSSC 73 (25 September 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

PATRICK NICKY CHAN CHUI
of Ululoloa.
Accused

Counsel: P Chang and M T Lui for prosecution
T R S Toailoa for accused

Judgment: 25 September 2007

JUDGMENT OF SAPOLU CJ

Introduction

I have already given a written ruling together with reasons on the submission of no case to answer by counsel for the accused. What is said in that ruling is deemed to be incorporated in this judgment so that it is not necessary to repeat all of what is said in that ruling. I will therefore proceed direct to determine whether each of the charges in respect of which I have found there is a case to answer has been proved beyond reasonable doubt.

Information S67/06 charging possession of narcotics

Information S67/06, insofar as it is still relevant, charges the accused with being knowingly in possession of narcotics, namely, three marijuana joints pursuant to s.7 of the Narcotics Act 1967. The offence of possession of narcotics consists of two elements which the prosecution must prove beyond reasonable doubt. These two elements were explained in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 where Hardie Boys J in delivering the judgment of the New Zealand Court of Appeal said at p.278:

" The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and the intention to exercise possession".

His Honour then went on to say:

" A charge of possession of a controlled drug also requires proof of knowledge by the accused that what was in his possession is a controlled drug; although he need not know its exact nature".

But see the comments on the second passage above by Thomas J in R v Foox [1999] NZCA 281

In respect of the first element of the charge, namely, actual or potential physical custody or control of the three marijuana joints, the evidence of constable Masofa is that when he searched through the 20-40 video cases under the television which was in the accused’s bedroom inside his own house, he found in one of the video cases dried marijuana leaves and three joints. The alleged marijuana leaves are no longer relevant. When those substances were shown to the accused he said they were marijuana and when he was asked whether they belonged to him he said no. In my view, the fact that the three joints were discovered inside the accused’s bedroom in his own house is evidence which goes to prove that the accused was in actual physical custody and control of those substances. The presence of those substances in a video case inside the accused’s bedroom also gives rise to the inference that the accused was aware of their existence inside his bedroom. The accused’s response when he was asked by corporal Masofa whether those substances belonged to him and he said no, is not acceptable evidence to the contrary which can displace that inference. It is, in any event, evidence which goes to denial of ownership rather possession. I, therefore, find that the prosecution has proved the first element of the charge.

As to the second element of the charge, namely, knowledge in the sense of an awareness by the accused that the three joints were in his possession and an intention to exercise possession, I have already said that the presence of the three joints in a video case found inside the accused’s bedroom gives rise to the inference, which has not been displaced by acceptable evidence to the contrary, that the accused was aware of the existence of those substances inside his bedroom. The same circumstances also give rise to the inference that the accused had the intention to exercise physical custody or control over those substances. There is also no acceptable evidence to the contrary which can displace that second inference. I, therefore, find that the second element of the charge has also been proved by the prosecution.

The remaining issue raised on behalf of the accused suggests that it has not been proved beyond reasonable doubt that the alleged cigarettes (joints) analysed by the ESR forensic scientist were the same as the three joints found by the police inside the accused’s bedroom. This is based on an apparent inconsistency between the evidence of sergeant Herbert who testified that he sent the three joints and the other exhibits found by the police in the accused’s house to the ESR in New Zealand and the report by the ESR forensic scientist which states that the ESR laboratory records show that those substances were received from chief inspector M Matafeo. I have already dealt in detail with this issue in my written ruling on the submission of no case to answer for the accused. I have reconsidered the matter and I am satisfied beyond reasonable doubt that the marijuana joints found by the police in the accused’s house and which sergeant Herbert testified he sent to the ESR are the same three cigarettes which were analysed by the relevant ESR forensic scientist and are the subject of his report. Two of those cigarettes were found to contain cannabis and cocaine and one was found to contain only cannabis.

I have, therefore, come to the conclusion that the prosecution has proved beyond reasonable doubt the charge contained in information S67/06 insofar as that charge relates to three marijuana joints.

Information S68/06 charging possession of a glass pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics

Information S68/06 charges the accused with possession of an instrument, namely, a glass pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics. In terms of s.13(b) of the Narcotics Act 1967 which is the charging provision, the prosecution must prove beyond reasonable doubt not only that the accused was in possession of a pipe but such possession was for the purpose of the commission of an offence against the Act. I have already dealt with the elements of possession and do not need to set them out again.

In respect of possession, the glass pipe which is the subject of the charge in information S68/06 was found by constable Edmond Masoe in the cistern (full of water) of the toilet inside the bathroom of the accused’s bedroom. Sergeant Samuelu and constable Faonu’u who were involved in the search of the bathroom testified that they witnessed constable Edmond Masoe found a glass pipe in the cistern of the toilet inside the accused’s bathroom. Corporal Masofa and constable Lorraine also gave evidence to similar effect. Sergeant Taalo who was the police exhibits officer during the search of the accused’s house testified that what constable Edmond Masoe gave him was a glass pipe.

In my view, the discovery of the glass pipe, or glass tube as some police witnesses called it, in the cistern of the toilet inside the bathroom of the accused’s bedroom, is evidence which shows that the accused was in actual physical custody and control of the glass pipe. The same fact gives rise to the inference that the accused had knowledge of the existence of the glass pipe. The response given by the accused when he was asked by inspector Fatu as to who owned the pipe and he said he did not own it is not satisfactory or acceptable evidence to the contrary which can displace the inference of knowledge. It is a denial of ownership but not of possession. The accused’s denial of ownership also does not explain how the glass pipe got into the cistern of the toilet in the bathroom of the accused’s bedroom which is a place that is most private to the accused personally. There is also the evidence given by constable Lorraine that when inspector Fatu asked the accused, the second time, about the glass pipe (or glass tube as she called it), the accused said that he had used it for smoking. But when he became sick and was admitted to the hospital where he almost died, he ceased using the pipe. The same evidence gives rise to the inference of knowledge and intention to exercise physical custody or control over the pipe which is the second element of possession.

I, therefore, conclude that possession of the glass pipe by the accused for the purpose of the charge in information S68/06 has been proved by the prosecution.

As to purpose for commission of an offence against the Act, namely, consumption of narcotics, there is the evidence of constable Lorraine already referred to. There is also the evidence given by sergeant Samuelu under cross-examination that the glass pipe or tube found in the accused’s bathroom is an object used for smoking drugs. Detective sergeant McCambridge from New Zealand gave general evidence about the use of a glass pipe for smoking methamphetamine. This is only general evidence which does not specifically relate to the glass pipe found in the bathroom of the accused’s bedroom. The general nature of this evidence affects its value and weight. Be that as it may, I am satisfied from the prosecution’s evidence, that the accused was in possession of the glass pipe for the purpose of the commission of an offence against the Act, namely, smoking narcotics.

I have already referred to and dealt with the apparent inconsistency between the evidence of sergeant Herbert who testified that he labelled and sent the exhibits to the ESR and the report from the ESR which states that those exhibits were received from chief inspector M Matafeo. I am satisfied on the evidence that the glass pipe sent by sergeant Herbert to the ESR is the same glass pipe that was examined by an ESR forensic scientist and is the subject of his report.

I, therefore, conclude that the prosecution has proved beyond reasonable doubt the charge in information S68/06.

Information 105/06 charging possession of copper pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics

Information S105/06 charges the accused with possession of a copper pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics. I have already dealt with this information and the relevant evidence in detail in my written ruling on the no case to answer submission. I do not propose to go through all of that again in this judgment as it is deemed to be incorporated into this judgment. I will, therefore, be brief in my discussion of this charge in this judgment.

The prosecution’s evidence shows that the bedroom where the copper pipe was found under the mattress of a bed was that of the accused’s children as the accused told the police. There is evidence that the accused’s children attend school which suggests that they are of young age. I find it difficult to accept that the copper pipe which was found to contain traces of cocaine when analysed by an ESR forensic scientist in New Zealand belonged to or was used by the accused’s children for smoking. The discovery of three joints in the accused’s bedroom, two of which were found to contain cocaine when analysed by an ESR forensic scientist, tends to reflect upon the accused as the user of the copper pipe rather than his children.

In my view, the discovery of the copper pipe in one of the bedrooms of the accused’s house which is used by his children is evidence which shows that the accused was in actual physical custody or control of the copper pipe. The same fact gives rise to the inference that the accused had knowledge of the existence of the copper pipe inside his house. Even though the accused when asked by inspector Fatu whether he had any knowledge of the copper pipe said no, I do not find that answer by the accused to be credible. As I have said, I find it difficult to accept that the accused’s children, who are only school children, would be using a copper pipe for smoking. As constable Lorraine described the copper pipe, it is like a copper pipe used by old men for smoking tobacco; hardly something one would expect a school child to keep in his possession. The copper pipe was also found to contain traces of cocaine and I have mentioned the joints found in the accused’s bedroom, two of which were later found to contain cocaine. There is also the evidence of constable Lorraine which shows that the accused told the police that he used to be a "smoker" but stopped smoking when he became sick and was admitted to the hospital. There is no evidence that any of the accused’s children smokes.

In respect of the mental element for possession, the evidence referred to gives rise to the inference that the accused was aware of the existence of the copper pipe inside his house. There is no acceptable evidence to the contrary. The same evidence also gives rise to the inference that the accused had the intention to exercise physical custody or control over the copper pipe.

I conclude that the prosecution has proved possession beyond reasonable doubt.

As to purpose, it must be clear from what has been said that the accused was in possession of the copper pipe for the purpose of the commission of an offence against he Act, namely, smoking narcotics.

I, therefore, find the charge in information S105/06 to have been proved beyond reasonable doubt.

Information 159/06 charging possession of fifty four .22 live ammunitions without lawful, proper and sufficient purpose

I have nothing to add to what has already been said in my written ruling on the no case submission in relation to the charge in information S159/06.

I find the charge in information 159/06 to have been proved beyond reasonable doubt.

This matter is adjourned to 8 October 2007 for a probation report and sentencing.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
Toa Law for accused