CHINESE WIN

Bay of Plenty Times, Volume LXV, Issue 12305, 20 April 1937, Page 3

CHINESE WIN

OPIUM APPEAL A CONVICTION QUASHED JUDGE DEFINES POSSESSION

Auckland, April 19 The appeal of a Chinese, Dong Wai, against convictions and lines of £SO, at Tauranga, for being in possession of opium and an opium pipe has been allowed by his Honor Mr Justice Callau. In his judgment his Honor defined what is “possession” in certain circumstances. His Honor says it was proved that the defendant, a market gardener, who had been in the habit of doing business with a police constable, called on the constable on January 17 and told him that an assistant of the appellant’s, Ah Dong, was an opium smoker. Dong Wai invited the constable to do something about it, hut it was inconvenient for the constable to do so at the moment as he was leaving Tauranga on holiday the next day. The constable resumed duty on January 30, but did not remember anything more about appellant’s call until the appellant was arrested by other members of the force on February 2. The arrest had followed that of auoth Chinese. In consequence of something the two members of the force heard, they visited the appellant’s house. ' They

did this in complete ignorance of his previous conversation with the other constable. In the appellant’s house a small quantity of dross, or residues remaining after opium smoking, and an improvised pipe, were discovered. The police theory was that the appellant had .recently been using the pipe for opium smoking. His Honor said that he did not feel justified in rejecting the evidence of Dong Wai that immediately after the interview with the constable he had dismissed Ah Dong, and that Ah Dong left the opium and pipe behind him, and that the appellant had not used them. Under these circumstances the appeal would, be allowed.

Dealing with the subject of "possession,” his Honor said that on the view he had taken of what passed between the constable and the appellant, on January 17, the pipe and opium should not have been held to be in the appellant’s possession unless it was affirmatively established by the prosecution that the appellant might be presumed to have intended to deal with them as the owner. This was not established. “I think it desirable to remark that the question of onus or presumption would probably have stood otherwise had there been no such previous communication to the police as I find existed,” added his Honor. "If in the absence of any such previous communication these things had been found in the appellant’s house and he had then suggested that Ah Dong alone had used them and had left them behind, it would no doubt have .been for him to establish this. At least prima facie they would, I think, have been in his possession. But that is not this case. Here the proper view is that possession had been disclaimed in advance by the appellant. That being so, their mere presence in the house will not do, and possession by the appellant must be affirmatively proved. As that has not been done, the appeals are allowed and the convictions are quashed.”

Mr J. F. Dickson appeared for the appellant and Mr V. R. Meredith for the Crown