TAM CHUN FAI v. R.

IN THE COURT OF APPEAL

1993, No. 663
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant was convicted after trial before His Honour Judge Wesley Wong sitting as a deputy judge of the High Court with a jury of trafficking in a dangerous drug namely 439.24 grams of a mixture containing 251.80 grams of salts of esters of morphine. He applied for leave to appeal against that conviction.

2. Evidence was led by the prosecution that on 10 November 1992 at 11.45pm two police constables saw the applicant leave Man Po building in Tze Wan Shan holding a bag in his left hand. The officers approached him and asked him where he was going. He replied that he was going for a snack. On being asked what it was that he was holding in his hand he remained silent and looked frightened. The officers then examined the bag and found that it contained 16 packets which subsequent examination revealed to be heroin.

3. He was arrested and, on being cautioned, made no reply. A search of his person revealed nothing incriminatory. He was then taken to this flat where a search was conducted, but nothing suspicious found.

4. The defence was that the officers had framed the applicant. It was put to them in cross-examination that they had punched and kicked him in the van in which he had been taken to a police station and demanded that he furnish them with information concerning criminal activities, including those relating to drugs, in the area. He was also threatened that his girlfriend would be charged if he did not admit to having committed a drugs offence. The police denied these allegations.

5. A third officer, an inspector, who was in charge of the police party and in contact with its members by means of a police radio, testified that he had been informed by one of the officers that the applicant had been arrested. On arrival at the scene of arrest one of the officers showed him the drugs that had been seized. It was put to him in cross-examination that the drugs had not been shown to him and that he had only seen the applicant in his flat. The inspector denied the allegations.

6. The applicant elected to give evidence. He testified that he resided in a flat in Man Po building and that, as he going out to take a meal at about 10.15pm, he noticed a man leaving the lobby of the building. A half a minute later he saw the man return. He explained the time factor by saying that he had been coming slowly down the stairs and was about 20 to 30 feet from the entrance to the building when he first saw the man.

7. As the applicant left the building he heard someone shout "Don't let him go", following which two men claiming to be police officers intercepted him. A third man, a sergeant, whom the applicant said was the man who had shouted out, told him that he was suspected of having been involved in a robbery and demanded to see his identity card. The sergeant then handed the applicant's identity card to one of the two officers and his wallet to the other.

8. The applicant was then taken to a police van where he was asked whether he had seen a man walk past and whether he knew him. He replied that he did not know the man. About ten minutes later while still in the van he was again asked whether he knew the man and whether he, the applicant, had any previous convictions. Following this the sergeant asked the other two officers whether the applicant had offered them any assistance. When they replied that he had not done so the Sergeant angrily left the scene and the two officers began to kick and punch the applicant.

9. Some 20 minutes later he was taken to his flat. While ascending the stairs to the flat he met the sergeant who announced that he had found 16 packets of dangerous drugs inside the management office, that he would give the applicant one last chance to cooperate by providing information and that, unless the applicant admitted the offence, his girlfriend would be arrested. On entering his flat, the applicant saw a woman police constable keeping watch over his girlfriend. The inspector then arrived. The applicant denied that he had been carrying anything when he was apprehended leaving the building but admitted that he had on his person about $3000 in cash.

10. The issue before the jury was therefore simply one of whether they were satisfied beyond reasonable doubt that the police had told the truth when testifying that the applicant was carrying the drugs.

11. Mr Grounds, who did not appear in the court below, advanced two specific grounds of appeal. First, he submitted that the deputy judge had erred in law in that he failed to direct the jury that the standard of proof cast upon the applicant by virtue of section 47(2) of the Dangerous Drugs Ordinance Cap 134 was one of proof on a balance of probabilities.

12. Section 47(2) provides:

"Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

13. The error at which this ground is directed stemmed from an intervention by Crown counsel at the conclusion of the deputy judge's summing up when he requested him to "direct the jury in accordance with section 47(2) of the Dangerous Drugs Ordinance". He then read out the subsection to the deputy judge in the presence of the jury.

14. This was completely uncalled for. For the jury to reach the stage of deciding whether the applicant had rebutted the presumption under section 47(2) they must have already concluded that he was knowingly in possession of a dangerous drug. The defence advanced by the applicant was that he had not been found in possession of any dangerous drug of whatever nature, not that he had been found in possession of a dangerous drug which he thought was different in nature from the drug stated in the particulars of offence. That being so, to give a direction under section 47(2) was totally inappropriate.

15. On the evidence before them the jury could not conceivably have found that it was more likely than not that the applicant had thought that he was in possession of some dangerous drug other than salts of esters of morphine.

16. However, the deputy judge, no doubt taken by surprise by this request and motivated by an abundance of caution, having asked Crown counsel to read out the subsection again for the benefit of the jury, told them "to take that into consideration in your deliberation as to whether he (the applicant) had knowledge of the nature of the substance". We pause here to observe that where at the conclusion of the summing-up counsel submits that the judge should give an additional or amended direction on a matter of law, the judge, if he accepts that the submission is correct, should then give the direction himself and explain its effect - in this case that of the subsection - to the jury. Had the deputy judge done so in the present case he may well have not made the omission of which complaint is now made.

17. Having got the deputy judge to place this red herring before the jury. Crown counsel, when it then became plain that the deputy judge had omitted to give a direction that the burden of proof cast upon the applicant under the subsection was one that need only be discharged on a balance of probabilities and not one of proof beyond a reasonable doubt, failed to remind him that he should give that direction.

18. Although the deputy judge's direction, such as it was, was incomplete, we are of the opinion that because a direction under section 47(2) was totally inappropriate, in the light of the evidence in the trial, it cannot be said to amount to a material irregularity. This ground of appeal therefore fails.

19. Before turning to the next ground of appeal we feel obliged to observe that in our opinion the subsection creates a wholly illogical and anomalous result and that early consideration should be given to its repeal. Its effect is that, once it had been proved that the accused had a dangerous drug in his possession, it is presumed, until the contrary is proved, that he knew which particular dangerous drug it was that he had in his possession. So that, if, for example, he succeeds in satisfying the jury on a balance of probabilities that he thought that the drug in his possession was of a nature different from that of the drug named in the particulars of offence such as, cocaine rather than heroin, he is entitled to an acquittal.

20. This produces a manifest absurdity where, as in the present case, the basis on which the prosecution seek to prove a charge of trafficking in a dangerous drug is that the accused had the drug in his possession for the purpose of trafficking.

21. To establish guilt the prosecution must first prove, with or without the assistance of the presumption in section 47(1) of the Ordinance, that the accused had a dangerous drug in his possession. This means that because knowledge is an essential ingredient of possession they must prove that he knew that he had a dangerous drug in his possession or custody or under his control.

22. We have emphasised the indefinite article "a" in the expression "a dangerous drug" because the offence on which the accused stands indicted is that of trafficking in a dangerous drug. The allegation in the particulars of offence that the drug is, for example, salts of esters of morphine, is nothing more than a particular. It is not an ingredient of the offence. The offence is not one of trafficking in salts of esters of morphine, but, as we have said, one of trafficking in a dangerous drug.

23. As Lord Reid observed in R. v. Warner [1969]2 AC 256 at 279:

".... it would be pedantic to hold that it must be shown that an accused knew precisely which drug he had in his possession."

24. We of course accept that there are cases in which the prosecution may be tied to the particulars of offence, for example, where time is an ingredient of the offence or where the defence is prejudiced by a misstatement of a particular and that particular is not amended. No prejudice could possibly arise from the reference in the particulars of offence to a particular dangerous drug where the offence alleged is one of trafficking in a dangerous drug.

25. The fact that an accused thought that he was trafficking in a dangerous drug different from that stated in the particulars of offence is irrelevant to the issue of guilt. It can only be relevant to sentence. In such a case the accused must plead guilty and seek to persuade the judge in a Newton hearing that he thought he was trafficking in that other drug. This, of course, could only avail the accused if the dangerous drug that he thought he was trafficking in was one that the courts recognise as attracting a lesser sentence than the one stated in the particulars of offence.

26. We now turn to the second ground. Mr Grounds submitted that the comments made upon the evidence by the deputy judge in the course of his summing up were such as to make the summing up fundamentally unbalanced and deprived the applicant of a fair trial. He referred us to several comments which he conceded were not in themselves sufficient to justify this court in coming to the conclusion that the summing up was unbalanced in the sense of unfair. He submitted, however, that these comments were all unfavourable to the

applicant and set the scene for the following passage on which he focussed his complaint:

"As to police impropriety which has been fully addressed to you by defence counsel, well, there may be occasionally - occasionally, very rarely, that you may have heard of police impropriety. But is it likely, in this case, that no less than six of them in the party would engage in a conspiracy to frame up the defendant out of no motive at all?

If they were to embark on some impropriety, would they do it with a party of six? And if they had framed up the defendant, would they be so daring as to publicise it, saying that we have got a big haul of drugs worth about almost $20,000? For what glory should they publicise the catch if it is a frame-up?"

27. We agree that the effect of this passage was to deny the applicant a fair trial. There is a real danger that the jury may have understood from the deputy judge's opening sentence that police impropriety is a rarity and that they could safely disregard it or at least treat it as being a highly improbable occurrence in the present case.

28. In the next sentence the deputy judge told the jury, in effect, that the police could have no motive for conspiring to frame the applicant. The applicant's defence was that he had been framed by the police. Since the jury would naturally conclude that the police would not engage in impropriety unless they had a reason to do so, the judge's comment was tantamount to telling them that they could safely dismiss the applicant's defence.

29. Furthermore, the suggestion which then followed that, if the police had framed the applicant, it was unlikely that they would have made a big haul of drugs worth almost $20,000, was illogical and misleading. While we accept that the police would be unlikely to publicise the fact that they had framed the applicant, we are unable to understand, if they had framed him, why they would be reluctant to publicise the fact that a big drug seizure had been made.

30. Although the earlier comments which the deputy judge made and of which we have not given any details, were strong, we do not consider that they exceeded the permissible limits of judicial comment. Had these comments alone formed the subject of complaint we would not have been disposed to intervene.

31. However, for the reasons we have given, the passage on which Mr Grounds centred his attack was so unbalanced that the applicant was denied a fair trial. As matters stood, the jury returned a majority verdict of five to two. Had the summing up been balanced the outcome might well have been different.

32. The application for leave to appeal against conviction was therefore granted and the hearing of the application having been treated as the hearing of the appeal, the appeal was allowed, the conviction quashed and the sentence set aside. A retrial was ordered.