HKSAR v. OU YANG MING CHYUAN

CACC 100/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 100 OF 2001

(ON APPEAL FROM HCCC 330 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 2 March 2001, the Applicant was convicted in the Court of First Instance of trafficking in a crystalline solid containing just over 4.16 kgs of methamphetamine hydrochloride (ice) following a trial before Deputy Judge Whaley and a jury. On 5 March 2001, he was sentenced to twenty-two years' imprisonment, which we note in passing was an inordinately lenient sentence bearing in mind the sophistication of the offence and the quantity of ice involved. The Applicant now seeks leave to appeal against conviction.

2. On 1 August 2000, the Applicant was stopped at 7.05 a.m. by customs officers in the Arrival Hall at the Lo Wu Control Point. He had been making his way back from the Mainland. When his luggage was inspected, the six boxes of chocolates and two boxes of cakes he had been carrying were found to have been skilfully used to conceal the presence of the ice which was contained inside the chocolates and the cakes. The Applicant allegedly said that the drugs were "amphetamine". Thereafter, however, he declined to answer all questions.

3. The sole issue at trial was concerned with whether, at the time the Applicant brought the drugs into Hong Kong, he was aware that he was carrying dangerous drugs. His defence at trial was that he had not admitted to any knowledge that he was carrying drugs of any kind. He stated that he was merely delivering chocolates and cakes on behalf of a "Mr Chan" to a woman called "Jacky Leung".

4. The Applicant's written ground of appeal simply stated that there was "insufficient evidence" which had made him feel "aggrieved".

5. In court today, the Applicant has added little of substance to his application.

6. We have read the summing up and it is plain that the judge gave a balanced review of the evidence within a framework of law that could in no sense be described as having been unfair to the Applicant. The Applicant's complaint today was that the judge had misdirected the jury about the application of the presumption under section 47(1) of the Dangerous Drugs Ordinance, Cap. 134, which (so far as it is relevant) reads:

"(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) .... any baggage, box, .... or other similar container containing a dangerous drug, ....

shall, until the contrary is proved, be presumed to have had such drug in his possession."

7. When the judge summed up to the jury, he informed them that they were to make no such presumption against the Applicant even though the unchallenged evidence clearly established that he was in possession of items containing drugs. The direction given by the judge was in these terms:

"Now, both counsel have made reference to a presumption in law, you will recall, members of the jury. You will recall that they told you that the prosecution is assisted in proving its case to you by this presumption, that where a person is found in possession of a dangerous drug, he is presumed, as a matter of law, to have known that it was in his possession, but that a defendant can rebut that presumption - in other words, satisfy you - if he satisfies you on a balance of probability that he did not know that he was carrying a dangerous drug, that it does not apply.

Now, members of the jury, you will recall that I am the ultimate authority on matters of law in this case, and you must accept the law from me and what I am telling you about this presumption is that you do not need to concern yourselves with this matter of a presumption on the facts of this case. Counsel were both being entirely professional and helpful in mentioning the matter to you, but you must take it from me that on the facts of this case, the question of a presumption does not apply, and you do not need to concern yourselves with it, all right, so put it completely to one side, clear it out of your minds.

I am sure you will be pleased to hear that because it removes, simply removes another possible complication from your consideration, so just put it out of your minds, any question of a presumption - it has no application on the facts of this case. Come back to consider once again the central question in this case, whether the accused knew at the time he brought the chocolates and cakes into Hong Kong whether they contained dangerous drugs. That is the real question you have to decide, and you must consider all of the evidence for the prosecution and the defence in considering this." (Tr. pp. 24-25)

8. In fact, counsel on both sides in the case, who had properly addressed the jury in their final speeches about this presumption, would no doubt have been taken much by surprise with these directions from the judge. We can perhaps suggest that if a judge decides that it is an unnecessary complication to deal with a presumption of this kind in a particular case, it would be advisable to mention the matter to counsel before the issue is further complicated by references to the presumption in their speeches to the jury. For these purposes, where it is appropriate to do so, we consider that the judge should first raise the issue with counsel before the opening speech has been made. Otherwise, as here, the laudable aim of simplifying the law is in danger of being lost.

9. Whatever the case may be, counsel were perfectly entitled to mention the presumption when they had not been made aware that the judge was going to direct the jury in these terms. It is perfectly plain, however, that the judge's directions on this topic could only have helped the Applicant, so that the matter raised by the Applicant carries no weight in this application whatever.

10. There was a wealth of evidence from which the jury was able to draw an inference that the Applicant knew that he was bringing dangerous drugs into Hong Kong and a glance at the photographs shows what a sophisticated venture this was.

11. The application is accordingly dismissed. It is an application which has been wholly without merit and for this reason we shall order, under the terms of section 83W of the Criminal Procedure Ordinance, Cap. 221, that six months of the time which the Applicant has spent in custody awaiting this hearing shall not count towards his sentence.