R. v. TAM KIM YEE

IN THE COURT OF APPEAL

1994, No. 415
(Criminal)

______________

______________________

J U D G M E N T

______________________

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

1. This is an application for leave to appeal against conviction on a charge of trafficking in dangerous drugs.

2. The applicant was indicted on three counts. The first was of trafficking in dangerous drugs namely, 25.9 grammes of a mixture containing 9.68 grammes of salts of esters of morphine (heroin) which was found in a motor car FJ6605 which he had been seen to be driving. The applicant was acquitted on that count. The second count on which the applicant was convicted of simple possession was of trafficking in 1,449.69 grammes of a mixture containing 825.56 grammes of heroin which was in his home. There was a third count upon which he was also acquitted of manufacturing the dangerous drugs found in his home.

3. It is not necessary to go into the background evidence in any great detail. It is sufficient to say that on 8th May 1993 in Clear Water Bay Road a party of police officers arrested the applicant who was in a stationary motor car which he owned and which he had been seen to be driving. The police officers had been following the car and saw that there were three occupants. One was a man, Li Kai-chung, who was wearing a blue T-shirt. He had left the car in Lei Yue Mun but was subsequently arrested, charged with drug offences and was convicted. There was another man, dressed in an orange T-shirt, who was known to the applicant as Ah Hung. Ah Hung had got out of the car before the police party came on a scene and arrested the applicant. He disappeared into the Choi Wan Commercial Complex and was never seen again.

4. When the police officers searched the car they found in the driver's seat a Marlboro cigarette packet which contained the drugs which were the subject of the first count. There was however some dispute as to exactly where these drugs were found and clearly the police evidence on this aspect was not entirely satisfactory. In relation to those drugs the applicant made a statement in which he said that "the white powder found in the car FJ6605 did not belong to me. I just helped others to carry the drugs to the side of a rubbish bin near Mei Foo Petrol Station." He went on however to say that in his home there were "some 20 odd ounces of white powder stored but none of it belonged to me. I just stored it and hid it for somebody else."

5. The police party then went back to the applicant's home and it was quite clear from what was found there that in addition to there being a large quantity of heroin, the premises had been used for manufacturing dangerous drugs. That evidence formed the basis for the second and third counts. In the applicant's home there was, inter alia, a large glass jar containing 570 grammes of heroin on which was found the applicant's fingerprint. It was not in dispute that the applicant had resided in the premises since 1st April 1991 in pursuance of a tenancy agreement. He had lived there with his girl friend, who he had subsequently married, but in 1992/1993 there had been some disagreement between the two of them and she had gone back to her family in Tsimshatsui. However they still continued to see each other and occasionally he would go and stay with her in Tsimshatsui.

6. On 3rd May Ah Hung (the applicant did not know his full name or his address) had asked to be able to stay in the applicant's home for a week. To this, the applicant agreed and on 5th May Ah Hung moved in. He and Ah Hung shared the flat that evening but on the following morning he gave Ah Hung the key and told him that he would spend that night at his girl-friend's place. On the following day he left early for work and again spent the evening with his girl-friend.

7. On 8th May the applicant returned to his home to change his clothes at about 10 a.m. He went into the room occupied by Ah Hung and saw a large bottle on top of a shoe cabinet which contained particles and some powder. He felt there was "something wrong with it". He opened the bottle and looked at the contents but did not know what it was. He then opened the drawer of a cabinet and found some bags of white powder but again did not know what they were. He felt there was something wrong but did not suspect that the contents of the jar and the bags was dangerous drugs. He also found that there were various things such as a hydraulic jack in the wardrobe and also a blender which was not his property. There was expert evidence that these were for use in crushing and breaking-down morphine blocks in order to make heroin. He then telephoned Ah Hung and asked him about the things that had been brought into his home. Ah Hung suggested that they should have a tea together when he would tell him what it was. As a result, he met Ah Hung at about 1 p.m. together with Li Kai-chung. Ah Hung asked the applicant to drive Li to Lei Yue Mun and that he did. Li Kai-chung then alighted and Ah Hung got into the front passenger seat. The defendant asked Ah Hung what he had brought into the flat and was told it was "white powder". The applicant then asked Ah Hung to go back to his home to take these things away but on the way Ah Hung got out of the car to place some bets in a betting centre and it was while he was away that the police arrested the applicant.

8. The applicant made a statement after his arrest following the finding of the dangerous drugs in his home in which he said "I don't know what to say". Subsequently however on 9th February he made a full statement admitting that he had been involved in the manufacturing of the heroin. That statement was admitted in evidence after a voir dire inquiry.

9. Essentially therefore the defence put forward by the applicant was that the heroin and manufacturing equipment found in his home was not his but belonged to Ah Hung. While he was suspicious as to what they were he did not know for certain and had contacted Ah Hung so as to get him to take these things away. He was arrested while trying to assist Ah Hung to do so. He was therefore not guilty of trafficking in the heroin in that he never dealt with it in any way nor did he store it in his home. Similarly he took no part in the manufacturing process.

10. In his summing up to the jury, the trial judge told them what the defence case was. He then however directed them, inter alia, as regards the question of possession of the dangerous drugs and the manufacturing equipment in the following terms:

"If you are sure, however, that he had possession of dangerous drugs and instruments, but not sure that he had trafficked in the drug, you should find him guilty of the alternative, possession of the drugs found in his home, but not guilty of the full offence of trafficking."

11. To the surprise of both counsel and the judge, the jury found the applicant guilty of the alternative lesser offence by a majority of five to two.

12. Mr. Marash, who appears before the applicant here as he did below, contends as his main ground of appeal that on the evidence before them the verdict was simply not one to which the jury could properly have come and that therefore the judge should not have left the alternative verdict to them. There was no evidence whatever that the applicant was an addict; indeed the evidence was to the contrary. If the applicant was in possession of the heroin there could be no other reason than that he was storing the heroin in his home and was therefore guilty of trafficking. If the jury was not sure of that, the applicant was entitled to a complete acquittal.

13. A further ground of appeal is that the trial judge failed to direct the jury that, if the applicant was aware of the existence of the heroin found in his home but had no intention other than to get Ah Hung to remove them, he was not guilty of trafficking, since mere knowledge of the existence of the drugs did not equate with possession of them.

14. Mr. Marash also makes complaint of the following direction which the judge gave to the jury:

"Second, there was this third man in orange T-shirt. Now he might or might not be involved in this case. He might or might not be Ah Hung. But in this case, you are dealing with this defendant. You have to decide on all the evidence, including the evidence adduced by him, to decide whether this defendant was involved in these drug offences. You are not concerned with whether anybody else was also involved."

Mr. Marash contends that that was misleading because the applicant's essential defence was that these drugs belonged to Ah Hung and that the jury should have considered the question of whether it may have been Ah Hung who was the man solely responsible for the drugs found in the car and in the home.

15. In our view the applicant's conviction cannot possibly be upheld.

16. On the evidence presented, the judge was not justified in directing the jury that they could find the applicant guilty of the offence of mere possession of the drugs found at his home. Not only was the quantity of those drugs so enormous that it could not conceivably have been possessed for personal consumption, but both the applicant and his wife gave uncontradicted testimony that he was not an addict.

17. Moreover, it was essential that the judge specifically direct the jury that mere knowledge of the presence of the drugs did not constitute possession. This was particularly important in the light of the defence that the drugs belonged to Ah Hung and that although the applicant had become aware of their existence and suspected that they were drugs, he, the applicant, had nothing to do with them.

18. On either of these grounds we would quash this conviction.

19. With regard to the remaining complaint, had the direction to the jury that they were "not concerned with whether anybody else was also involved" (emphasis supplied) stood alone, we would not have been disposed to interfere, for the judge made it plain to them that the applicant's defence was that Ah Hung had stored the drugs in his flat without his permission or knowledge. It was perfectly correct of the judge to tell the jury that what they had to decide was whether the applicant had committed the offences and that it was irrelevant that anyone else might also have been involved.

20. For the reasons we have given we grant the application and, treating it as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.