THE QUEEN v. TSANG KAM CHIU

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against a conviction before Duffy, J. and a jury (by a majority of five to two) on an indictment charging the applicant with the possession of dangerous drugs for the purpose of unlawful trafficking. The indictment read as follows:

" STATEMENT OF OFFENCE

    Possession of a dangerous drug for the purpose of unlawful trafficking therein, contrary to section 7 of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

    TSANG Kam-chiu, on the 7th day of July, 1989 inside the wooden hut at the rear of No. 50A, Wah Shing Tsuen, Fung Kat Heung, Kam Tin, Yuen Long, New Territories, Hong Kong, had in his possession a dangerous drug, namely 13,580 grammes of a mixture containing 11,933 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein."

2. Prior to the applicant's arraignment Mr. Gary Plowman, who was his counsel at the trial and is the junior to Mr. Henry Litton, Q.C., leading for the applicant here, applied for the applicant to be discharged, pursuant to s. 16 of the Criminal Procedure Ordinance, on the basis that the evidence disclosed in the documents, filed pursuant to s. 80C(1) of the Magistrates Ordinance, was insufficient to establish a prima facie case against the applicant for the offence with which he was charged, or for any other offence for which he might be convicted. That application was refused but at the close of the Crown's case a further application was made that there was not sufficient evidence upon which a reasonable jury, properly directed, could convict the applicant. That application was however also refused and the applicant then gave evidence on his own behalf.

3. The Crown's case was that on the 7th of July 1989 a police party, led by a Senior Inspector Rogers, went to a hut situated at Wan Shing Village, Kam Tin, New Territories. This hut is situated about 25 yards away from a shop occupied by the applicant above which is his living accommodation ("the shop"). The applicant has been the tenant for about two years. It is also not in dispute that the hut to which the police party went does not form any part of his tenancy and is in fact on Crown land. It is surrounded by trees and banana plants and is barely visible from the shop. Access to it is via a path which runs on both sides of the shop but again it is not in dispute that the hut can be approached from other ways. The police party found an electric flex running to a light in the hut connected to a power point on the outside of the shop. The door of the hut was closed when the police party arrived but not locked. When they entered they found 22 porcelain chinese vases which had been made up into electric lamps, all but two in cardboard boxes. On examination it was found that ten of these lamps contained a large amount of heroin. The tops of these lamps had all been glued down. Also in the hut was a large quantity of packing material such as shredded paper, polystyrene, glue, some travel bags and other cardboard boxes. There was also a weighing machine and some gloves.

4. The police party then went to the shop. There was evidence that in the vicinity of the shop were about 15 men who were apparently having breakfast. This was at approximately 6 a.m. However it would seem that whatever they were eating had not been supplied by the applicant's shop which was not then open for business. Apart from that there was no evidence as to who these other people were or what they were doing in the area.

5. There was some conflict of evidence as to exactly where the applicant was when the police party arrived, one police officer said he was coming out of the shop whereas the applicant in his evidence said that he was asleep when the police party came. The evidence given by the applicant was not however challenged in cross-examination, which was somewhat surprising given that it was an essential part of Crown's case that on that morning the applicant was the guardian of the hut containing the drugs. The applicant was informed about the finding of the heroin in the hut, was cautioned and made a long statement in question and answer form which was admitted at the trial without challenge.

6. In his statement the applicant said that he had been doing business at the shop for about two years. The previous tenant was a Mr. Tse Wing Shing but he had given up the tenancy and the applicant now paid a rent of $875 a month to the Rural Committee of the Wah Shing Village. He lived there with his wife and his two sons lived with his sister in law. He said that the hut at the rear of his premises had been illegally erected but he did not know by who; it had been unoccupied for a long time. He denied that the drugs found in the hut were his but that some ten days previously a friend of his, who he knew as "Sho Pau", telephoned him asking if there was any "vacant space" at the back of his house as he wanted to find a place for doing the finishing touches on some lighting decorations and vases. He needed the premises for "about a couple of days". The applicant told him that at the back of his house there was an empty wooden shed "for lending". On the 4th of July, a Tuesday, Sho Pau, together with another man, arrived the shop and he took them to look at the wooden hut. Sho Pau said that on the following day the lighting decorations and vases would be brought there for the finishing work and he then left. Accordingly on the following day, the 5th, Sho Pau again came together with two other men in a blue van. They then moved cardboard cartons into the hut and then stayed for some time doing some work with them. The applicant said he did not go in to see what they were doing. He went on to say that he had never received any payment from Sho Pau for the hut and he was just acting as a friend. He gave a description of Sho Pau and said that they gambled together and used to frequent a seafood restaurant in Mongkok. He gave the police Sho Pau's mobile telephone number and added that Sho Pau was a member of the "Big Circle" gang.

7. The applicant went on to say that on the 6th of July Sho Pau telephoned him and told him that the goods would be taken away on the 7th. No particular time was mentioned. He went on to give a description of the other three men who had come with Sho Pau one of whom he said he could recognise as he had a red mole on his forehead. The applicant was then asked some questions, the answers to which are relied on by the prosecution as showing that the applicant had control over the hut in which the heroin was found. These questions and the answers are as follows:

"Question : Is he a close friend of yours? (referring to Sho Pau)

Answer : Can't say he is a close friend, but I have been acquainted with him for a rather long period of time, hence trust him.

Question : Because you trusted him, you lent him the wooden shed for working in, did you?

Answer : Yes."

The applicant then said that the electric wire running from his shop to the hut was put there by Sho Pau with the applicant's permission. He also said that on one occasion after the men who had been working in the hut had left he did go to have a look in it from the doorway. He said he saw boxes and wrapped cartons but he did not open them.

8. The applicant made a further statement at the Narcotics Bureau on the morning of the 8th of July. He said that while he was being detained in the cell of Wanchai Police Station, he had seen the man with a red mole on the head and this man had done processing work on lighting decorations in the wooden hut. This man had told him that his boss "Peter" had told him to do the processing work and apparently he had been arrested as he was about to fly to Australia. As was pointed out to the jury, it seems unlikely that if the applicant was involved in the drug packing he would have told the police about seeing the man with the red mole in the Wanchai police cells.

9. The applicant gave evidence along lines of his statements. He said that as far as he was concerned the hut was abandoned and nobody had occupied it during the two years that he had lived in the shop although some villagers had used it to store chicken feed. When Sho Pau had come to look at the hut he showed it to him and said it would leak if there was rain and there was no electricity. Sho Pau asked him if he would allow them to run a flex from the shop and he agreed. He took no part in putting that into position. In cross-examination he was asked, with reference to Sho Pau and the hut:

"Question : and you said you could lend it to him for a few days?

Answer : One or two days."

The Crown seeks to rely on that answer, together with the similar reply to a leading question in his statement as showing that the applicant did have control of the hut on the 4th.

10. The Crown relied entirely on the presumption under s. 47(1) (c) of the Dangerous Drugs Ordinance, there being no evidence that the applicant was ever in actual or constructive possession of the heroin. This provides that:

"Any person who has proved to have in his possession or custody or under his control -

(a) ...

(b) ...

(c) any place or premises or the part of any place or premises in which a dangerous drug is found

(d) ...

shall, until the contrary is proved, be presumed to have had such drug in his possession."

It was the Crown's case that by lending the hut to Sho Pau on the 4th of July and allowing him to take electric power from the shop to the hut on that day the applicant was exercising control over the hut. However the indictment refers to the 7th of July and the Crown had to prove beyond reasonable doubt that on that day the applicant was still in control of the hut. The Crown contended that in view of the very high value of the heroin found by the police party and the fact that the door of the hut was not locked, those responsible for putting the heroin into the hut, and there was no evidence that the applicant was one of them, must have left somebody in control to act as a guardian for the contents. That person again must have been the applicant.

11. Before us it was the Crown's case that the applicant had spoken to Sho Pau on the phone, had told him premises were available and saw him when he came to the hut. He had shown it to him, discussed its suitability, allowed him to use it and he had provided electric power. The hut was close to the shop and was accessible by paths running on either side of it. On the morning of the 7th of July he was in his shop and would be able to see people approaching the hut by means of the path.

12. In the course of the arguments before the trial judge as to whether there was a sufficient case to be put before the jury on several occasions Crown Counsel referred to the applicant showing "some degree of control" over the hut at the time of the visit by Sho Pau on the 4th of July. It was of course necessary for the Crown to show control, not just some degree of control. There was evidence that the applicant did offer to lend the hut to Sho Pau although this came in the form of firstly a very leading question in his cautioned statement and then in reply to a question in cross-examination but in our view there was by no means clear evidence that the applicant did consider that he had the right to lend the hut so as to constitute control of it on the 4th. That however was not the crucial question for the jury to decide. That question was did the evidence here allow for the jury to infer that on the 7th of July the applicant had such control. It had to be the only reasonable inference they could draw from the established facts. The trial judge directed the jury on this crucial issue of control over the hut on the 7th of July as follows:

"For the purposes of this case, if you find beyond a reasonable doubt that the defendant on 7th July 1989 had under his control that wooden hut, then the law says this : you must - I repeat - must then go on to draw the inference that he was in possession of the drugs in that hut, and a further inference, if that is the inference you draw, that he knew what they were. So if you find beyond a reasonable doubt that the defendant was in control of that hut, and I will discuss that in a moment, you must, as a matter of law, go on to draw the inference that he was in possession of the drugs in that hut, and that he knew what they were."

That direction was wrong but the trial judge went on to say later:

"    So if you come to the conclusion beyond reasonable doubt that on the 7th of July, and remember that is what we are talking about - 7th July 1989, the defendant was in control of that hut, and I will explain that in a moment, then you must go on to presume or infer that he was in possession of the drugs in that hut and knew what they were, unless the defendant can satisfy you that it is more probable than not that he did not have the drugs in his possession and did not know what they were.

    Was he, the defendant, on the morning of the 7th of July in charge of that hut? Had he been left, as the prosecution suggest, on guard over its contents? Was he in control of the hut that morning in the sense that he could make decisions about it, or assumed he could make decisions about it, and about who could use it? Was he left that morning in charge of the hut? That is the decision you must make.

    If you make the decision that he was not, that is the end of the matter. We all pack up and go nome. There is nothing further for you to consider. If you have any doubt about that, that is the end of the matter. So you must be satisfied beyond a reasonable doubt that he was on the 7th of July in control of that hut, as I described that term, before you can go on to consider any other aspect of this case.

    If you think, or think it possible, that he merely indicated to Sho Pau this was an empty hut he could use for his own purposes, whatever they might be, and let him to decide about what use he would make of it and had nothing to do with what was going on in that hut, and so was in no way in charge of the hut in the morning of the 7th of July, you must acquit the defendant."

13. Those were clear and accurate directions as to the question to be decided by the jury and as to the way they were to consider it, about which the applicant can make no complaint.

14. There can be no doubt that an appeal court should be slow indeed to interfere with a finding of fact made by a jury, properly directed. Here, while there can be some criticisms made about the summing-up, it did put the issue fairly before the jury. However even assuming that the applicant by showing the hut to Sho Pau on the 4th of July indicating that he could use it, and providing electricity for it, did control the hut on that date, and we think that is itself doubtful, the jury had to be very carefully directed as to what was the evidence from which they could properly infer that the applicant was in control of the hut on the 7th of July.

15. Taken at its highest, and as outlined in the Crown's skeleton argument here, that evidence was:

1.    He was the tenant of nearby shop premises and a path runs past those premises to the hut which can be kept under observation from the shop.

2.    While he said he was asleep when the police party came at 5:30 a.m. (on which he was not cross-examined) there was some evidence that he was up and about.

3.    The hut was abandoned but the applicant on the 4th of July allowed other men to occupy it and to use his electricity.

4.    The hut was not apparently closely guarded by anyone else.

5.    The applicant thought that Sho Pau was a Big Circle member and dealt in construction materials so would be unlikely to want to use the hut for the legitimate purpose of packing porcelain lamps. (The applicant said he thought the Big Circle gang assisted illegal immigrants.)

16. In our opinion that was not enough to show control - not a "degree of control" - but full control over the hut on the 7th. The Crown's own case was that the applicant "lent" the hut to Sho Pau on the 4th "for a few days". Sho Pau was to use it for packing the lamps and did so. The applicant admitted that he went to the hut and had a look at what was going on but saw nothing which was contrary to that use - indeed it would have been perfectly consistent with it. Moreover if the applicant gave Sho Pau possession of the hut on the 4th he no longer had control of it himself unless there was evidence of him retaining such control. The Crown's case was that the leaving of the heroin in the unlocked hut on the 7th showed that somebody was guarding it and the applicant, with his close proximity to the hut and command of a good view of the path leading to it, must have been that guardian. Therefore he had control over the hut.

17. Much was made in cross-examination of the applicant of the remark in his statement that he thought Sho Pau was a Big Circle gang member and therefore must have had suspicions about what was happening in the hut. We do not consider that was relevant to the question of whether he had control of the hut on the 7th. Nor do we think the electric flex supplying power from the applicant's house was nighly probative. The applicant could have cut off that source of power at any time he wished to do so which may be some evidence of control but, while relevant, we do not consider that took the Crown's case of the applicant being the guardian of the hut and its contents on the 7th of July much further. It was perfectly consistent with the applicant's evidence of simply allowing a friend who was using a nearby abandoned hut for a few days to have electric light.

18. That there were other persons in the vicinity in the very early hours of the 7th of July was not in dispute. Apart from having breakfast there seems to have been no evidence of what they were doing. That they, or some of them, may have been there to guard the contents of the hut was obviously a real possibility and that was suggested to the jury by the trial judge but apparently rejected by them. Clearly however the case against the applicant would have been stronger if there had been nobody else in the vicinity when the police party found the heroin in the unlocked hut.

19. The drawing of inferences is essentially a matter for the jury, properly directed. It was necessary for them to be satisfied that the applicant on the 7th of July had control of the hut. In R. v. Cheung Yuk San 1968 HKLR 27 at 30, an authority on which the applicant relies, Huggins, J., in considering the question of what constituted "control" in the context of what was then s. 16 of the Dangerous Drugs Ordinance, and in particular "the element of domination or command which is there implicit" with reference to the statutory presumption, said:

"    It has been said that 'control' is a word of 'wide and ambiguous import': per Mr. Justice Dixon in Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1, 385. Nevertheless one must construe it in its context. Section 6 is evidentiary, i.e., in given circumstances it supplies evidence of matters which would otherwise have to be proved strictly. What may thus be proved are some of the elements of possession. The control which must be proved in order to bring the presumption into play is a control which suggests a probability that the controllers is in possession. In Choi Lang-hung v. Reg. (1958) H.K.L.R. 261 the court was concerned with a somewhat similar provision in the Arms and Ammunition Ordinance. The court said at p. 270:-

'It was part of the appellant's case that the control of the tin was actually in his employer at the material time, that his employer was nearby and that he acted under his employer's orders. If this were so then there could have been in our view no effective control over the tin by the appellant.'"

20. In light of the evidence here it was in our view necessary for the trial judge to set out very clearly exactly what was the evidence relied on by the Crown as showing beyond reasonable doubt that the applicant had such control of the hut, as set out in Cheung Yuk San, on the 7th. In our view if that had been done no reasonable jury could have come to the conclusion that he did have such control and that there was no other reasonable possibility, on the evidence before them, other than that the applicant was guarding the hut and its contents on the 7th of July. The case should not have been left to them. We have no doubt that the conviction is unsafe. We allow the application, treat this as the hearing of the appeal and quash the conviction.