HKSAR v. CHUI CHI WAI AND ANOTHER

CACC338/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 338 OF 1998

(ON APPEAL FROM HCCC 322 OF 1997)

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J U D G M E N T

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Stuart Moore J.A. (giving the judgment of the Court):

1. On 27th April 1998, both Applicants (D1 and D2 at trial) were convicted, following a trial before Saied J. and a jury, of trafficking in 18,797 tablets containing approximately 2.1 kgs. of M.D.M.A. (ecstacy). D2 was further convicted on a similar count, where he alone was charged. In this offence, the quantity of ecstacy was approximately 2.3 kgs. Sentence was then not imposed until after this court, differently constituted, had given judgment in HKSAR v. Lee Tak-kwan, (1998) 2 HKLRD 46. The judgment was delivered on 26th May 1998. On 15th June 1998, D1 was sentenced to 15 years' imprisonment and D2 was sentenced to a total of 20 years' imprisonment. In D2's case, 15 years' imprisonment was imposed on each count, with five years on count 2 ordered to run consecutively to the sentence on count 1.

2. The Applicants originally appeared in person to seek leave to appeal against conviction and were represented by Mr. Percy in their applications for leave to appeal against sentence only. On 3rd March 1999, when the matter was first listed for hearing, this Court indicated that it felt that there existed arguable grounds of appeal against conviction and therefore extended legal aid for that purpose.

3. Mr. Percy now represents D1 and D2 in respect of their conviction applications. It seems unclear as to whether these applications are made out of time. Certainly Mr. Bruce, S.C., for the Respondent, takes no point upon it and, out of an abundance of caution, we simply indicate that we are prepared, if out of time, to give leave to hear the application.

4. The facts of this case could not have been more straightforward although we note, with some dismay, that this was originally a case which was estimated to last ten days but which in the event took no less than 30 working days in court.

5. Essentially, following a surveillance operation, the bag containing the ecstacy in count 2 was found in D2's address at 35 Cameron Road in Tsim Sha Tsui, after the other bag and its contents, the subject of the jointly charged first count, were allegedly handed over by D2 to D1 in the street below the address. D1 and a third man then boarded a taxi which the police intercepted. D1 flung down the bag and said nothing at that stage, although in interview later he admitted knowledge of what was in the bag and said that he intended to sell the pills to his friends. D2 was arrested in possession of the keys to the Cameron Road premises and it was an admitted fact that he rented those premises.

6. D1's defence was that it was the third person who took possession of the bag containing the ecstacy tablets. He had travelled together with that person in the taxi and was told that gifts were in the bag. D1 also alleged that the video-recorded interview contained a false confession which had been forced out of him by earlier threats and violent behaviour on the part of the police.

7. D2's defence was that he had been an innocent dupe in effect, who had been tricked into involvement by a trusted and long-standing friend called Cheung Ming, to whom he owed some money. Cheung Ming led him to believe that he would be delivering some gifts and slimming pills on Cheung Ming's behalf. A slightly complicated arrangement for the collection of the items led to his taking possession of what turned out to be the ecstacy pills. D2 denied all knowledge of what in reality he had been given.

8. Mr. Percy, who also appeared in the court below for D2, has advanced a number of grounds in his Perfected Grounds of Appeal, all of which arise from the directions given by the trial judge at pages 9F to 10G in the summing up and about which we expressed some concern on the last occasion this matter came before the Court.

9. On behalf of the Respondent, Mr. Bruce has frankly conceded that in part the directions given are difficult to understand and, standing alone, some of those directions may well be described as inapt. The stance that he has adopted is that, bearing in mind what the real issues in the case were and, given other directions of the judge which were correctly given, the jury did nevertheless have the issues clearly before them in spite of the impugned directions. In such circumstances, he invites the court to apply the proviso.

10. Against this background, it is sensible to set out the judge's legal directions as to possession in full. To do so, it is necessary to go back to page 8M. The judge said this:

"It will be plain to you, members of the jury, that trafficking essentially involves possession of the drug. If you do not have it, you cannot traffic, so trafficking involves possession.

The accepted definition of 'possession', has been held to be in these terms. In the ordinary use of the word 'possession', one has in one's possession, whatever is, to one's knowledge, physically in one's custody or under one's control.

I must stress that there could not be possession of a dangerous drug unless the defendant knew that the thing which was alleged to contain the dangerous drugs was in his possession. So that knowledge of the presence of the thing in question is an essential prerequisite of possession. How can you have possession of something, the existence of which you do not know?

So 'possession' properly defined is being knowingly in control of a thing in circumstances which involves an opportunity, whether availed or not to learn or discover, at least in a general way, what that thing is. And there several defendants are charged with possession - here in count one there are two defendants - then you must understand that knowledge of the presence of the drug in the hands of a confederate is not enough. The question is whether there is a joint enterprise in terms that I explained to you earlier, to traffic in drugs together, because possession of drugs by one of them, in pursuance of that common intention, that is to traffic, can be possession on the part of all of them.

You may think that possession of a package, or packet, or bag, or bags is a strong inference of possession of its contents. But I emphasise to you that the necessary criminal intention of possession would not be satisfied if it was shown that the defendant was genuinely mistaken as to its actual contents and that of their illicit nature and receive them innocently, provided he had no opportunity since receiving the containers to acquaint himself with their contents.

Therefore, you must consider the manner and circumstances in which the substance, or something which contained it, has been received. What knowledge or means of knowledge or guilty knowledge as to the presence of the substance or as to the nature of what has been received the defendant had, at the time of receipt, or thereafter up to the moment when he is found with it; his legal relation to the substance or package (including his rights of access to it). On such matters as these, you must make the decision whether, in addition to physical control, he has or ought to have imputed to him, the intention to possess, or knowledge that he does possess, what is in effect a controlled substance. If he had this intention or knowledge, it is not additionally necessary that he should know the nature of the substance.

In explaining this last direction, let me emphasise that the term possession is satisfied by a knowledge only of the existence of the thing itself and not of its qualities and that ignorance or mistake as to its qualities would not excuse. This would comply with the general understanding of the word 'possess', for example, though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin, I am in possession of heroin tablets. This would be so, even if I believed them to be sweets.

It would be otherwise if I believed them to be something of a wholly different nature. And at this point, a question of degree would arise as to when a difference in qualities amounts to a difference in kind. And that is a matter for you to decide."

11. Mr. Percy's first ground of appeal is that, hearing these directions, the jury would have been likely to think that it was open to them, even if they accepted the version given by each defendant, to convict on the account given by each one of them.

12. It is clear to us that while physical possession of the bag in count 1 was disputed by D1, the jury by their verdict must have rejected D1's version of events to the effect that he was never in physical possession of the bag. In his case, therefore, the real issue was whether or not he knew the nature of the contents of the bag he was seen to have been holding. On both counts, the same issue was central to the case against D2 who was shown by undisputed evidence to have been in possession of the bags containing the drugs.

13. The direction given at page 9K in the summing up (underlined) is in almost precisely the same words used by the same judge in The Queen v Law Wai-choi & Another, (1997) HKLRD 555. Mortimer J.A. (as he then was), at page 560I, had this to say:

"I agree that in each case the appeal must be allowed and the convictions quashed.

The central issue was whether the two applicants were in possession not only of the paper bag but also of the drugs it contained. The defence of each was innocent possession of the bag without knowledge that it contained drugs. Similarly both denied knowledge of the drugs in the flat. In the passage at p.13 of the summing-up the judge properly directed the jury on the prosecution case:

'you may think that possession of a package or packets, or a bag, is a strong inference of possession of its contents.'

And then upon the defence case:

'But I must emphasise to you that the necessary criminal intention of possession would not be satisfied if it was shown that the defendant was genuinely mistaken as to its actual contents, and that of their illicit nature, and received them innocently ...'

However, he then effectively withdrew the defence from the jury when he said:

'... provided he had had no opportunity since receiving those containers to acquaint himself with their contents.'

By this the judge elevated into a proposition of law what was no more than one of the circumstances to which the jury could pay heed in determining whether knowledge of the contents of the bag had been proved.

In the further passages cited by Liu J.A. the judge failed to rectify this error. He repeated it. In these circumstances the jury might have concluded that an opportunity to acquaint themselves with the contents of the containers was in itself sufficient to establish knowledge of the contents. This is wrong and may have had the effect of withdrawing from the jury each defendant's defence of innocent possession of the packet without knowledge of its contents."

14. Those words echo the sentiments already expressed by Liu J.A. earlier in the Court's judgment at page 559A.

15. Mr. Percy contends that the confusion in a jury's mind can only have been made worse by the phrase "controlled substance" used by the trial judge in the passage which followed because this might have been understood to mean anything illegal, not simply dangerous drugs. Whether or not that is so, Mr. Percy is on stronger ground when he submits that the defence of mistaken belief as to the contents of the various bags was virtually withdrawn from the jury when the judge said (in the passage shown in italics above):

"... the term possession is satisfied by a knowledge only of the existence of the thing itself and not of its qualities and that ignorance or mistake as to its qualities would not excuse. This would comply with the general understanding of the word 'possess', for example, though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin, I am in possession of heroin tablets. This would be so, even if I believed them to be sweets."

16. We find ourselves at a total loss to understand what the judge was trying to say to the jury but the impression the jury may have gained is, we accept, that a mistaken belief as to the contents of the bags could not be a defence as provided by section 47(2) of the Dangerous Drugs Ordinance, Cap.134, which states:

"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."

17. In this particular case, as has already been indicated, both defendants went into the witness box and gave a detailed explanation for what they believed to be the contents of the bags with which they were associated.

18. These were material misdirections on the part of the trial judge on the one important issue upon which the jury required clear and accurate directions. The jury, in other words, needed to be told in clear terms the practical effect of section 47(2) of the Dangerous Drugs Ordinance. Whether or not D1 and D2 knew the name of ecstacy or MDMA, or knew the drug by some other term, was beside the point so long as the jury was satisfied the defendants had knowledge that they possessed something in the nature of dangerous drugs.

19. The judge was in error to have directed the jury, as he appears to have done, that the defendants were guilty "even if (they) believed them to be sweets" or, in his earlier illustration, "aspirin".

20. Whilst Mr. Bruce is right to say that elsewhere in the summing up the judge correctly stated the law, the judge never corrected the error he had made on the one crucial issue in the case and nor, sadly, did counsel attempt to correct him either. The analogy used by the judge when referring to sweets and aspirin would have been particularly poignant. It is true that at the end of the summing up the jury were directed that if they accepted the defendants' versions of events, they must be acquitted but we are by no means satisfied, on the facts of this case, that this was enough to dislodge the mistaken impression they would have received as to the law of possession as it relates to drugs.

21. Accordingly, we have concluded that we are unable to apply the proviso.

22. We shall grant leave for the reason that the judge's misdirections render the verdicts unsafe and unsatisfactory. Treating the hearing as the appeal, we quash the convictions and the sentences which were imposed. Mr. Percy accepts that a retrial would meet the justice of the case and we shall make an order for a retrial upon a fresh indictment.