THE QUEEN v. CHAN HOI-WING

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 14 October 1996 the applicant was convicted after trial before Deputy Judge Wong and a jury of trafficking in 30.18 grammes of "ice" - sometimes known as methamphetamine hydrochloride - and 4 tablets of "Rohypnol". She was sentenced to imprisonment on the same day. She now seeks leave to appeal against her conviction for trafficking. There was no dispute that she was in possession of those drugs.

The facts

2. On 17 March 1996 at about 11.45 in the evening, she was seen entering a flat in Shanghai Street, Kowloon. She had a pink plastic bag in her hand. She was stopped by police officers. It was found that the bag contained three straws and a cup with a cover. Those articles were suitable for consuming "ice" and, indeed, she said that was why she had them.

3. On a further search in her jacket pocket was found a white plastic bag containing 26.23 grammes of "ice". Also, in her trousers pockets were found two further packets of "ice", one containing 2.76 grammes and the other 1.19 grammes together with the "Rohypnol" tablets. She stated at the time that the "ice" and the "Rohypnol" were for own consumption. A stance which she maintained when she was later questioned and when she was later tried.

A new point

4. This application has taken an unusual turn. Mr Saw, who appears for the Crown alerted Mr H.Y. Wong, who appears for the applicant, to possible submissions he could advance that the direction to the jury where the judge defined "trafficking" was flawed. We gave Mr Wong leave to advance this point in addition to other matters contained in his notice of appeal.

5. After some anxious consideration, we have concluded that the point is determinative of the appeal. In those circumstances we give the applicant leave.

The trial

6. The case for the prosecution before the judge and jury was of great simplicity. It was that the circumstances and in particular, the quantity of the drugs which were found on the appellant, were such that led to the inevitable inference that she had those drugs in her possession for the purpose not of only using them herself but also for supplying to others, either by peddling them or delivering them. Her case was, as it had been from the outset, that these drugs had been bought by her in bulk because she was addicted to "ice" and that she would use those drugs only to satisfy that addiction. The issue was joined as to the length of time that the amount that she had on her would last. She said she was so addicted to this drug that she required 2-3 grammes a day. From the evidence of the Government scientist - which by its nature was somewhat vague - it would appear that not too much is known about the amount that addicts take in Hong Kong. In summary, his opinion was that an addict would be likely to take something between 0.1 of a gramme and 0.8 of a gramme as one dose. He conceded that for some addicts it may be more. He thought it unlikely that it would exceed one gramme. The applicant's possible daily consumption was a relevant matter the jury had to decide but central to the case was the legal definition of trafficking. The judge adopted the definition of trafficking in s.2 of the Dangerous Drugs Ordinance (Cap 134). He said this:

"The law defines trafficking in a very wide way. It includes the importation and exportation of drugs to and from Hong Kong. It also includes procuring, supplying, or otherwise dealing in or dealing with the dangerous drugs, or possession of those dangerous drugs for the purpose of trafficking. So, to succeed in proving the charge the prosecution has to prove, beyond reasonable doubt, that she trafficked those dangerous drugs in the sense that I have just defined to you according to the Ordinance."

The application

7. It is perhaps strange for this Court to say, or even for counsel to submit, that when the judge used - and used accurately - the statutory definition of trafficking in directing the jury, that it is wrong. But without explanation, that definition was extremely misleading to a lay jury. He did not explain to the jury what those words in the definition mean. Nor did he - for their assistance - tailor the definition to the particular facts of this case. We ask, therefore, without further explanation what was the jury to think of "procuring" as a definition of trafficking on the facts of this case? What were they to think of the words "dealing in or dealing with" those drugs?

8. The issue for the jury was starkly simple. The simple question was: had the prosecution proved beyond reasonable doubt that she had those drugs, or part of them, in her possession for the purpose of supplying them to others, either by peddling or delivering? That issue related to the facts was not left at that point of the summing-up.

9. The question then arises: was the matter put right taking into account the whole of the summing-up? There is certainly a tenable argument that from the whole summing-up, the jury may have come to the conclusion that the issue for them was whether or not the whole of the drugs were for her own use. But later the judge returned to "trafficking" This could only relate back to the earlier definition. When leaving the issue he said this:

"So, you have to consider all the evidence and you can only convict her for trafficking if, after considering all the evidence, you are satisfied beyond reasonable doubt and you feel sure that she had those drugs only for the purpose of trafficking. If you have any doubts then you should find her not guilty of trafficking."

We have paused to ask ourselves whether we can be sure that the jury did understand fully the only issue which was for their consideration. The answer is that we cannot. In those circumstances this direction to the jury was - in spite of it following the terms of the Ordinance - in part wrong in law when applied to the facts of this case. The jury did not receive on this central point, the assistance which was necessary. It is only right to say, however, that in all other respects, the summing-up is fair and comprehensive.

10. In the result for the reasons we have endeavoured to set out, this appeal must be allowed and the conviction on trafficking quashed. There was no issue at trial whether the applicant was in simple possession of those drugs and so, although we quash the conviction for trafficking, we substitute a conviction for simple possession.