CHUI SHEK HUNG v. R.

IN THE COURT OF APPEAL

1992, No.459
(Criminal)

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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 conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking by Mr. Justice Ryan and a jury. There was also an application for leave to appeal against sentence but that has been abandoned by leave.

2. The applicant himself filed grounds of appeal but those have also been abandoned and we are concerned solely with the perfected ground of appeal which has been argued by Mr. Christopher Mumford, Q.C., leading counsel for the applicant, who did not appear below. That relates purely to a direction given by the judge in relation to the duty of the jury in deciding various issues of fact. Having told the jury that it would be their major task to decide whether or not the applicant was in physical possession of the drugs, as alleged by the crown witnesses, the judge then went on:

"The Crown also have to prove to you so that you are sure that the accused knew that he had the packet in his possession and he knew that the packet contained heroin. Again. I do not think that would cause you any great concern in this particular case."

3. It is contended by Mr. Mumford that the question of the applicant's knowledge of the contents of the packet was a matter for the jury to decide and the direction may have caused them to believe it was not.

4. The evidence for the Crown was that on 17th November 1991 Police Constable 21775 was on patrol with other police officers and he saw the applicant in the vicinity of Fuk Wah Street at about 6:20 p.m. together with another man who was wearing a grey track suit. The applicant and this other man got into a taxi which they followed and it stopped in Wing Sing Lane near the junction of Nathan Road.

5. The police officers said that they saw the applicant then alight from the taxi and walk towards Nathan Road. The police party intercepted him and he was searched. A reddish/purple plastic bag was found in a pocket of his wind-jacket and there is no dispute that in this packet there was a white transparent plastic bag containing some 480 grammes of a mixture which in turn contained 145 grammes of pure heroin.

6. The applicant did not himself give evidence but various allegations were put to the police witnesses on his behalf by his counsel at trial. These were that the police evidence was a total fabrication in that the packet containing the heroin was not found in the applicant's wind- jacket at all. After his arrest he had been taken to another building while the police officers tried to find the man in the grey track-suit. One police officer, Constable 46520, succeeded in doing so but when no drugs were found on him. he was released but, when told that had happened, Constable 21775 was angry and said he must be re-arrested. The applicant and the police party then went round in a van to try to find the man in the grey track-suit again but that search was not successful. The packet containing the heroin was not found on the applicant but was discovered in a dust-bin in the building to which the applicant had been taken.

7. There was also police evidence that when the applicant was arrested he made a statement in which he said that the packet of heroin was found on him it was not his but that it belonged to the other man, presumably the one in the grey track suit, who he referred to as "Na Char". He said, "Ah Sir, the stuff is not mine. It belongs to Na Char."

8. The whole thrust of the defence was that the evidence of the police as to the discovery of the packet of heroin on the applicant was totally fabricated and he had not made the statement to them which was alleged. The judge, in reference to the statement, said to the jury:

"If you felt that in respect of the statement you were uneasy in any way about the way in which it might have been obtained, then you would disregard it.. If you felt the officers were not being truthful when they told you how the statement was obtained, then you would disregard it."

9. Mr. Mumford contends that although the defence as put to the crown witnesses was indeed that the applicant was not in physical possession of the packet and quite rightly the jury were told that the question of whether he was in physical possession of the packet was their main task, nevertheless it was a matter for them to decide, if they found he was in physical possession of the packet, whether he knew what was in the packet. The judge in saying that would not cause them any great concern had misled them, it was a matter for them to decide and they may not have given it the consideration which it deserved.

10. Mr. Stephen Wong, Senior Assistant Crown Prosecutor, who appears here for the Crown, contends that there was ample evidence in the police evidence as to what was said by the applicant to show that he knew what was in the packet and clearly the jury had accepted the police evidence. If they had not accepted it they would not have convicted.

11. We are satisfied that although perhaps the direction given was unfortunate in that the jury should have been directed to give full consideration to the question of the knowledge of the applicant as to the contents of the packet, the words used do not lead us to think that they may not have given that matter due consideration.

12. The packet weighed almost half a kilo and if the jury accepted the police evidence as to where it was found, as clearly they did, the applicant must have been aware that it was in the pocket of his wind- jacket. The packet was a plastic bag containing another transparent bag in which was the heroin. Even without the statutory presumption of knowledge contained in Section 47(1) of the Dangerous Drugs Ordinance, on which the crown did not rely, once the jury was satisfied that the applicant was in physical possession of the packet, and they were rightly told that was the real issue for them to decide, the evidence, including his statement, was overwhelming that he must have known what was in the packet.

13. We are satisfied that the jury, bearing in mind the very clear and fair directions given to them as to the manner in which they should treat the police evidence, must have been satisfied that the applicant was in physical possession of the plastic bag and that he did make the statement about it which meant that he also knew what was contained in the plastic bag.

14. We are satisfied that this conviction is not unsafe or unsatisfactory and the application for leave to appeal against conviction is refused.