HKSAR v. CHAN CHOR YIM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.435
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one count of trafficking in a dangerous drug. The count read that he, on 28th September, 1996, at Mack Carpark, Lung Hei House, Lower Wong Tai Sin Estate, together with Ng Wai Leung, unlawfully trafficked in a dangerous drug, namely 5,216.07 grammes of a crystalline solid containing 4,748.11 grammes of methamphetamine hydrochloride. He was convicted after trial before Deputy Judge Souza and was sentenced to imprisonment for 23 years. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that on the afternoon of 28th September 1996, he drove his vehicle to the Mack Carpark in Lower Wong Tai Sin and there handed two bags which contained the drugs, the subject of the charge, to the person named Ng Wai Leung.

3. The only issue in this appeal, as it has been argued before us today by Mr. Eric Kwok, is whether the judge misdirected the jury as to the effect of s.47 of the Dangerous Drugs Ordinance. The trial judge in this regard directed the jury as follows:

"Section 47 of the Dangerous Drugs Ordinance provides: (1) Any person who is proved to have had in his physical possession - (a) anything containing or supporting a dangerous drug; ... shall, until the contrary is proved, be presumed to have had such drug in his possession"

4. The trial judge then, having dealt with the standard of proof, went on to say, and this is the passage of which complaint is made:

"Failure to rebut the presumptions will result in the accused's conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs and that the possession was for the purpose of trafficking in them." (Emphasis supplied.)

5. The complaint is that, as the presumption deals with knowledge only, the indication that the presumption also proves "the purpose" of the possession is a misdirection. The presumption does, it is true, not prove the purpose of the possession but it is to be noted that the trial judge did not say that the presumption proved the purpose but said that if there was a failure to rebut the presumption the prosecution would have proved "on the whole of the evidence adduced" both possession and purpose.

6. The judge then went on to deal with inferences saying:

"The point is not whether you can draw the particular inference that the prosecution ask you to draw, namely, that his purpose in possession the dangers drugs was to traffic in them but whether the facts are such that they cannot fairly admit to any other inference being drawn from them."

He referred more specifically to the inference of trafficking later when he said:

"The very substantial quantity of ice seized, the prosecution says, must give rise to the compelling inference that whoever possessed them must have had them for the purpose of trafficking."

7. We think it unlikely that the jury would have taken the words complained of to mean that the presumption proved the purpose given that the judge made reference "to the whole of the evidence" and then immediately turned to deal with the way in which possession for trafficking could be proved by inference arising out of the amount. Moreover the misdirection, given that there was one, concerned a matter about which there was no real issue. The only inference that could possibly have been drawn, given the quantity of drugs involved, was one of possession for the purpose of unlawful trafficking. The misdirection occasioned no miscarriage of justice and we have no hesitation in applying the proviso.

8. The application is allowed. We treat the hearing of the application as the hearing of the appeal. The appeal is dismissed.