THE QUEEN v. YUEN KAM-HUNG

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. Dangerous drugs were found hidden in a motor car which was being driven by the 3rd Defendant and in which the 1st and the 2nd Defendants were passengers. None of these Defendants was the owner of the car. More dangerous drugs were found on the person of the 1st Defendant. The questions which arose for our decision related to the criminal liability of each of those in the car.

2. The evidence for the prosecution was that at O2.10 hours the car was stationary in a cul-de-sac close to the building in which the 1st and the 3rd Defendants lived. It was driven a few yards and then intercepted by the police. The 2nd Defendant was sitting in the front passenger seat and the 1st Defendant, a young girl, was in the back seat. Each of the Defendants in turn alighted and the two men were searched. As the 1st Defendant alighted a packet of dangerous drugs fell from her on to the ground. She was arrested and, when she was searched at the police station, three packets of heroin were found inside her brassiere. The car was searched somewhat casually at the scene and nothing was found, but on a more thorough search at the police station a polythene bag was found hidden between the sun visor above the front passenger seat and the roof. In that polythene bag were one backet of heroin and one packet of cannabis.

3. All three Defendants were charged with possession for the purpose of trafficking of the total quantity of heroin found and with unlawful possession of the one packet of cannabis. The 1st Defendant pleaded Guilty and the two men (the present Appellants) were convicted after a trial in the District Court.

4. Counsel for the 2nd and 3rd Defendants at the trial submitted that they had no case to answer and, on the appeal, Mr. Payne on behalf of the 2nd Defendant has contended that the judge was in error in ruling that his client did have a case to answer. The judge recognised that no presumption of possession arose against the 2nd Defendant but came to the conclusion that in all the circumstances a reasonable tribunal might infer that he was in possession. The judge did not expressly distinguish between the various lots of drugs and it is to be assumed that he thought the inference might relate to all of them.

5. Mr. Payne rightly submits that, when considering whether the judge's ruling was correct, we should ignore the evidence which was subsequently given for the defense: Reg. v. Abbott 1955 2 Q.B. 497 The burden of his submission  is, therefore, that on the prosecution evidence it was impossible to infer that the 2nd Defendant knew of the existence of any of the drugs, 1et alone that he was in possession of them. We think that is right. No doubt there was ground for very strong suspicion that the 2nd Defendant was party to a scheme for transporting the drugs, but it was possible that he was totally unaware that the drugs were in the car. Even if he knew of their presence, that was not enough to fix him with animus possidendi. He could have been an innocent passenger who, having become aware of the presence of the drugs, did nothing to adopt the intention of whoever was in possession. He should  therefore have been acquitted and discharged at that stage in the proceedings.

6. With respect to the judge, we think that even at the end of the trial there was insufficient evidence upon which to convict the 2nd Defendant. The 2nd Defendant himself did not give evidence, but the 3rd Defendant gave evidence and called the 1st Defendant as a witness. The substance of their evidence in respect of the 2nd Defendant was that he had spent 3½ hours at the home of the 1st Defendant's mother before boarding the car. He was apparently to be a member of a party which was to visit Shatin on the following day. The 3rd Defendant had borrowed the car from the mother for the purpose of this visit, but the 3rd Defendant also agreed to drive him home that same night. The two men went down to the car and on the way met the 1st Defendant, who asked to be driven to a park which was only slightly off the route to the 2nd Defendant's home. There was no evidence explaining the purpose of the 2nd Defendant's long visit to the mother and no evidence of any arrangement to pick him up next day for the intended expedition to Shatin. The judge thought that knowledge of the drugs had been proved but that the 2nd Defendant's mere presence in the car was not sufficient to establish his guilt, since he was being given a lift home. He said that the fact that the 2nd Defendant "apparently acquiesced in the 3rd Defendant's decision to drive the 1st Defendant to the park at that late hour did not add much to the evidence against him", but he concluded that the failure to withdraw from the situation and the absence of explanations on the two points just mentioned, "although these additional features may be rather slender", justified an inference that he was party to a joint venture for the disposal of the drugs in the car. Not only do we think that such an inference was unjustified, but the judge's view that without the "additional features" the guilt of the 2nd Defendant was not proved shows that his ruling that there was a case to answer on the prosecution evidence alone must have been wrong. Moreover, the 2nd Defendant was under no obligation to give the explanations the absence of which the judge thought was so material.

7. It is unnecessary to refer to Mr. Payne's other criticisms of the Reasons for Verdict: we were satisfied that the appeal of the 2nd Defendant had to be allowed, his convictions quashed and the sentences set aside.

8. The case against the 3rd Defendant was different in that there was uncontested evidence that he was the driver of. the car. The judge held that that was sufficient evidence of "control" of the car to raise a presumption under s.47 of the Dangerous Drugs Ordinance that the 3rd Defendant was in possession of the drugs inside the car. Mr. Sedgwick's first contention is that the 3rd Defendant's control of the car was not such as raised the presumption at all and he relied upon dicta in CHEUNG Yuk-sang v Reg. 1969 H.K.L.R. 27, where the Full Court said that the driver of a vehicle did not necessarily have the sort of control which was within the contemplation of the Legislature when it enacted s.47. In our view that case is clearly distinguishable and the ,dicta cited have no relevance here. The court was concerned to distinguish between, on the one hand, the control of an employed driver who was accompanied by his employer and, on the other, the control of that employer. It was not disputed that the car in the present case had been borrowed by the 1st Defendant's mother, who was not in or near the car at the material time. On the evidence the 3rd Defendant, and the 3rd Defendant alone, had control of it and accordingly the presumption clearly arose against him.

9. Mr. Sedgwick's second point was that the presumption could not arise against the 3rd Defendant in respect of the drugs hidden in the brassiere of the 1st Defendant or even in respect of the drugs which fell. from her as she alighted from the car, but only in respect of those hidden above the sun visor. No suggestion was made that the drugs which fell from the 1st Defendant were not found "in" the car. The argument was that the Legislature could not have intended that the presumption should arise in respect of drugs which, although found in the car, were concealed about the person of a passenger and not such that the driver was likely to see them. This argument, also, was based largely upon the dicta. in CHEUNG Yuk-sang v Reg. and upon the suggested injustice in making a person answerable for the activities of another of whose criminal conduct he was unaware. We are not persuaded that the Legislature did not mean what the words of the section appear to mean. The intention was to cast the net very wide but to leave a gap in the mesh through which the innocent could make their escape. Necessarily there might be cases where, because an innocent defendant was not believed, the gap in the mesh proved   too narrow, but the Legislature thought that this risk was so slight, when compared with the danger that the guilty might avoid conviction for an offence which threatened the fabric of society, that it had to be taken. It was, we think, assumed that where a visitor in a car or a house had drugs concealed upon his person the owner of the car or house would have no difficulty in discharging the onus of proving his innocence on a balance of probabilities.

10. That brings us to the third of Mr. Sedgwick's submissions - that the reasons given by the judge for disbelieving the 3rd Defendant's evidence were unsatisfactory. It is true that a defendant against whom the presumption of possession has arisen can usually do no more than go into the witness box and deny knowledge of the drugs in the hope that his denial will sound convincing. Here the judge had to consider the 3rd Defendant's denial in the light of all the evidence, including  the fact that the drugs hidden above the sun visor were on chemical analysis found to be of the same strength as those on the person of the 1st Defendant. He rejected as "most unlikely" the suggestion that the drugs above the sun visor had been in the car before the 3rd Defendant took control of it and as altogether too remote a possibility that, if all the drugs had been in the car, some of them had been secreted about the person of the 1st Defendant in the time available. Moreover, the judge found it difficult to believe that the 3rd Defendant would have agreed to drive a girl of 13 years to the park from outside her home for some undisclosed purpose at that hour in the morning, particularly when he admitted to knowing that her mother was anxious about her being out late. In all the circumstances we do not think that it was necessarily wrong of the trial judge to conclude that the 3rd Defendant had not discharged the burden of rebutting the presumption in respect of any of the drugs.

11. Mr. Sedgwick conceded that the presumption would, in any event, arise in respect of the drugs found above the sun visor and that if his submission was right it would not entitle the 3rd Defendant to an acquittal. It would, however, affect the sentence which ought to have been passed, since the drugs found above the sun visor consisted of the very small packet of cannabis and only 4.5% of the total quantity of heroin mentioned in the charge sheet. We accordingly granted an extension of time in which to apply for leave to appeal against sentence. However, for the reasons which we have given we think that the argument fails and that the applications of the 3rd Defendant must be dismissed.

5th September 1984