HKSAR v. SHING SIU MING AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 415
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The 1st Applicant who was tried before Saied, J. and a jury seeks leave to appeal against his conviction for a conspiracy to traffick in dangerous drugs and for dealing with property known or reasonably believed to represent the proceeds of drug trafficking. He also seeks leave to appeal against the sentence of 30 years imprisonment imposed upon him in respect of these offences.

2. The 2nd Applicant who is the Common Law wife of the 1st Applicant seeks leave to appeal against her conviction for assisting another to retain the benefit of drug trafficking and leave to appeal against the sentence of 7 years imprisonment imposed upon her for this.

3. The 3rd Applicant who is the younger sister of the 1st Applicant seeks leave to appeal against her conviction for a similar offence to the 2nd Applicant and leave to appeal against the sentence imposed upon her of 7 years.

4. Particulars of the offences in question are as follows:

"Count 1

SHING Siu-ming, between about the 15th day of November, 1994 and the 25th day of November, 1995 in Hong Kong and in Australia, conspired with LEE Cheung-wah, CHAN Chung-kan, WONG Kong-loong, CHAN Man-shan, LAM Vi (also known as Vi LAM), HONG Lu (also known as Lu HONG), LI Yi (also known as Yi LI), TAN Min-jing (also know as Min Jing TAN) and persons unknown to traffic in a dangerous drug, namely heroin.

Count 2

KWONG Po-yin, between about the 6th day of February, 1995 and the 31st day of August, 1995 in Hong Kong, was concerned in an arrangement whereby the retention or control by or on behalf of SHING Siu-ming of the said SHING Siu-ming's proceeds of drug trafficking was facilitated, in respect of : (i) Hong Kong currency $834,754.93, (ii) Hong Kong currency $1,310,975.00, and (iii) Hong Kong currency $500,000.00, knowing or having reasonable grounds to believe that the said SHING Siu-ming carried on or had carried on drug trafficking or had benefited from drug trafficking.

Count 3

SENG Yuet-fong, between about the 9th day of May, 1995 and the 31st day of August, 1995 in Hong Kong, was concerned in an arrangement whereby the retention or control by or on behalf of SHING Siu-ming of the said SHING Siu-ming's proceeds of drug trafficking was facilitated, in respect of Australian currency $1,527,000.00, knowing or having reasonable grounds to believe that the said SHING Siu-ming carried on or had carried on drug trafficking or had benefited from drug trafficking.

Count 4

SHING Siu-ming, between the 1st day of September, 1995 and the 27th day of November, 1995 both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property of a value of Australian currency $820,217.56, in whole or in part directly or indirectly represented proceeds of drug trafficking, did deal with that property."

5. The conspiracy in question involved the supply of large quantities of heroin from the conspirators in Hong Kong to other conspirators who were resident in Sydney Australia. The procedure which was adopted was for the heroin to be packed in water supply equipment and then to be air freighted to Sydney. On arrival in Sydney it was unpacked and processed and then sold in manageable quantities. Part of the proceeds of sale were then sent back to Hong Kong to be shared amongst the Hong Kong conspirators.

6. Matters came to a head when raids were conducted at two of the premises used for the operation in Sydney. On the 25th November 1995 at about 7:00 p.m. officers from the National Crime Authority attended at premises at 43 Highcliff and arrested Lam, Hong, Li and Tan. A search at the premises revealed 3.863 kilogrammes of pure heroin; a hydraulic press and equipment for processing the heroin to a lower purity together with empty panadine packets. This chemical is used for this purpose. They also found a large amount of cash in Australian dollars and various records indicating that substantial sums of money had been remitted to 1st Applicant in Hong Kong. In addition to this there were particulars of 1st Applicant's account at Hang Seng Bank Head Office in Hong Kong and an account at the Hong Kong Bank.

7. A 2nd raid was conducted at Hong's residence at 2, Fairmount Street. Here some of the water systems were found which had been used to contain the heroin being shipped to Sydney together with 7.9 kilogrammes of heroin. Money and other documents were also found which were of relevance to the case including a piece of paper which had written on it particulars of the 3rd Applicant's account at the Hang Seng Bank.

8. So far as the Hong Kong end of the operation was concerned, there was evidence that the 1st and 2nd Applicants were arrested on the 27th November 1995. However it would appear that the other Hong Kong conspirators namely LEE Cheung-wah, CHAN Chung-kan, WONG Kong-loong and CHAN Man-shan somehow got information about the Australian raids and managed to escape before being arrested.

9. There was detailed evidence concerning the nature and scope of the operation in Hong Kong and how the heroin had been shipped to Australia.

10. One of the matters which emerged from this was that Lee and C.K. CHAN had been prime movers in Hong Kong. The 1st Applicant agreed that they were both close friends and that there had been close contact between the men at the relevant time when shipments of heroin had been made to Australia. There was evidence of numerous telephone conversations and their close association had also been confirmed by evidence obtained from surveillance activities.

11. There was also lengthy evidence from Mr. Toohey a Partner in Arthur Anderson Accountants in Australia who had undertaken a major tracing exercise which clearly demonstrated how funds which had emanated from the Australian conspirators had found their way into the accounts referred to in Hong Kong. In summary HK$46.9 million was remitted to Hong Kong of which the 1st Applicant had received directly or indirectly $14.8 million. He also received almost 80% of the money transferred between recipients. Half of the funds had been withdrawn in cash and the other half remained in his accounts at the time of his arrest.

12. It was also clear from the tracing exercise that the amounts referred to in counts 2 and 3 emanated from the Australian conspirators.

13. It is not necessary to deal with the conspiracy in any detail as it was common ground at the trial that there was overwhelming evidence of the existence of the conspiracy. The only live issue was whether the 1st Applicant had been a participant in the conspiracy.

14. He gave evidence at his trial. He claimed to have wide business interests which included a used car business, some trading in real estate and breeding dogs which engaged in fighting where heavy bets were placed. The 1st Applicant claimed that these activities had been highly remunerative.

15. So far as all the payments were concerned, the 1st Applicant claimed that he had permitted his close friend Mr Lee to use his bank accounts. He had also at Mr Lee's instigation arranged for the 2nd and 3rd Applicants to assist in using their accounts for Lee's purposes. He claimed to have absolutely no idea that Lee had engaged in drug trafficking. He had not considered it to be necessary to ask Lee why he wished to have large payments made into his account and for him to make payments of these amounts back to him in due course.

16. The 2nd and 3rd Applicants also gave evidence. In like fashion they both said that they had only done what the 1st Applicant had asked them to do and that they had not thought it to be necessary to get him to explain what he was doing. They both added that it had never occurred to them that the 1st Applicant might have been involved in drug trafficking.

17. As can be appreciated from this very short summary of the case that the essential issues of the trial were the credibility of the three Defendants and whether their explanations were accepted by the jury or more accurately whether the prosecution had succeeded in proving its case against all these Applicants on the respective charges at the appropriate level.

18. The 1st Applicant's 1st ground of appeal is that there was a material irregularity in the conduct of the trial in that the jury was supplied with a copy of the ordinance (Cap 405) or sections thereof, thereby enabling them, in effect, to interpret and direct themselves on law, a matter exclusively in the province of the trial Judge.

19. The 2nd and 3rd Applicants make a similar complaint so it is convenient to deal with them together.

20. What is important to bear in mind is that this was not simply a case of the Judge giving the jury copies of the ordinance to consider. The jury only received copies of the relevant sections which were under consideration. Over and above this, the Judge had himself given a detailed explanation on the sections and had directed them upon how the law should be applied.

21. This was not a question of the Judge supplying the material to the jury to make what they could of it. They had already received detailed directions and the provision of the copy of the sections was a matter of providing an aide memoire. This did not amount to an irregularity and these grounds of appeal cannot be sustained.

22. The 1st applicant's 2nd ground is that the Judge erred in that he wrongly failed to require the prosecution to make an election to proceed on either the conspiracy count (count 1) or the related substantive count contrary to S.25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 (Count 4).

23. This ground appears to be misconceived. Charge 1 and charge 4 are not laid in the alternative. They are separate and distinct charges and independent of each other.

24. By S.25(1) a person can be charged with drug trafficking and dealing with the proceeds of the trafficking.

25. The obtaining of a conviction for drug trafficking is not a pre-requisite for a conviction for dealing with the proceeds of any trafficking. The essential question for determination is whether a Defendant had reasonable grounds to believe that the moneys were indeed the proceeds of drug trafficking. This ground cannot succeed.

26. Ground 3 is that the Judge's directions on law in relation to conspiracy to traffic in dangerous drugs were deficient, confusing and contradictory.

27. There is no merit in this ground. The Judge's direction was sufficient in the circumstances of the case. It was generally accepted that there was an overwhelming case that there had been a conspiracy along the lines charged. The only issue was whether the 1st Applicant had been a party to it. There was a plenitude of circumstantial evidence implicating the 1st Applicant. The jury heard all the evidence and accepted that the 1st Applicant had been a participant.

28. Ground 4 is that the Judge's directions on law in relation to dealing with property known or reasonably believed to represent the proceeds of drug trafficking were deficient and confusing.

29. The 2nd and 3rd Applicants have made similar complaints in their grounds. It is, however, necessary to bear in mind an important distinction.

30. The 2nd and 3rd applicants each faced a count (Count 2 and Count 3) brought under S.25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap.405. This Ordinance was amended in 1995 but we are concerned with the Ordinance as it was at the time of the offences. The 1st applicant was charged (Count 4) under the amended Ordinance. The original Ordinance can be paraphrased making it applicable to the facts in the charges faced by the 2nd and 3rd applicants as follows:

"A person who enters into or is otherwise concerned in an arrangement whereby the retention or control by or on behalf of another's proceeds of drug trafficking is facilitated, knowing or having reasonable grounds for belief that that other person is a person who carries on or who has carried on drug trafficking, or has benefited from drug trafficking, commits an offence."

31. The amended S.25 under which the 1st applicant was charged retained the words "knowing or having reasonable grounds to believe". It created a new statutory defence in S.25A but it is not necessary to refer to that defence as it played no part in these proceedings.

32. Under both the old section and the new section the onus is on the prosecution to prove an arrangement of the type specified entered into by a person "knowing or having reasonable grounds to believe" that the person to whom assistance is being given has been a drug trafficker or has benefited from drug trafficking. It is for the prosecution to prove beyond reasonable doubt that (1) there was such an arrangement; (2) that the person who entered into it participated knowing or having reasonable grounds to believe that the person assisted was a drug trafficker or had benefited from drug trafficking.

33. The old S.25(4) provides that it is a defence to prove that the person charged did not know or suspect that the arrangement related to the proceeds of drug trafficking.

34. It is important to give separate consideration to the matters which the prosecution must prove and, as regards the 2nd and 3rd applicants, to the statutory defence. There is no real difficulty in the present case as regards the proof of entry into an arrangement by the two applicants to help, in one case the husband and in the other the brother, to retain or control money. As the jury were clearly satisfied that the 1st applicant was involved in drug trafficking, that matter also occasions no difficulty when considering these two offences.

35. The difficulty arises from the use of the words "knowing or having reasonable grounds to believe". Knowledge if proved would simply resolve the matter. Difficulty, however, arises from the use of the words "having reasonable grounds to believe". This phrase, we are satisfied, contains subjective and objective elements. In our view it requires proof that there were grounds that a common sense, right-thinking member of the community would consider were sufficient to lead a person to believe that the person being assisted was a drug trafficker or had benefited therefrom. That is the objective element. It must also be proved that those grounds were known to the defendant. That is the subjective element.

36. We turn now to the summing-up to ask whether the jury were properly directed on these elements.

37. The judge commenced his direction as regards Counts 2 and 3 at page 107 setting out S.4(1)(a) of the Ordinance, which provides that:

"4(1) For the purposes of this Ordinance -

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Ordinance) in connection with drug trafficking carried on by him or another, are his proceeds of drug trafficking; and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards."

38. He then directed the jury as follows:

"So the Crown for this count two and three must prove firstly, that the amounts mentioned in count two and three are Shing Siu-ming's proceeds of drug trafficking, he being mentioned there as the relevant person. Secondly, that D2 and D3, in their respective counts, knew or had reasonable grounds to believe that Shing Siu-ming carried on drug trafficking and thirdly, that D2 and D3 individually, in respect of their counts, were concerned in an arrangement whereby retention or control by or on behalf of Shing Siu-ming of his proceeds of drug trafficking was facilitated, and the relevant person, as I've said, who is mentioned in section 25(1)(a) in this case is Shing Siu-ming."

39. He went on to say:

"The burden lies on the Crown to prove all these matters and it must do so beyond reasonable doubt. If you are so sure - if you are sure about that - you will then go on to consider section 25(4), which is the statutory defence ....."

40. He then went on to read S.25(4)(1)(a) and (b):

"25. (4) In proceedings against a person for an offence under this section, it is a defence to prove -

(a) that he did not know or suspect that the arrangement related to any person's proceeds of drug trafficking; or

(b) that he did not know or suspect that by the arrangement the retention or control by or on behalf of the relevant person of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in sub-section (1)".

41. He then pointed out to the jury that the burden on the defendant was discharged by evidence satisfying the jury of the probability of that which the defendant was called upon to establish. He said:

"In other words, on the balance of probabilities and that is it is more likely than not that they did not know or suspect. That is the burden on the defendant. Quite distinct and quite apart from the burden on the Crown. The burden on the Crown is to prove their charges beyond reasonable doubt, not so with the defence with respect of the proof of the statutory defence. They can do it on the basis of the balance of probabilities - more likely than not."

42. He then turned to the facts relating to count 2. He had, however, barely embarked upon them when Mr. Blanchflower indicated that he wanted an adjournment. In the absence of the jury he then told the judge, inter alia,

"Now, to a lawyer these sections are difficult. You can imagine what it would be like to a layman. But with respect, my Lord, I find that direction somewhat confusing, but it was deficient. Your Lordship did not explain the proceeds from drug trafficking in laymen's terms, meaning that it could be proceeds from actual drug trafficking , or a laundering, a money-launderer laundering a money-launderer's money."

He then went on to complain that the judge had not explained the meaning of "drug trafficking", of "benefit from drug trafficking", of "reasonable grounds to believe" and of "knowledge, belief and suspicion as is found in the defence - section 25(4)". It was a most inappropriate intervention. Mr. Blanchflower, before this court, has suggested that the judge had directions on these matters ready as, after the jury was recalled, he appeared to read from his notes which related thereto and he has submitted that the omission of the directions may have been an oversight. However that may be, an intervention such as this should not have come until the completion of the summing-up. It is for the judge to structure and present his summing-up. If it is incorrect or incomplete as to the law these matters should be pointed out to him in the absence of the jury at a natural break or after the summing-up has been completed. Interruptions such as were made in the course of a summing-up are not only inappropriate but are likely to do more harm than good. It is otherwise if the judge has made a mistake of fact. In such circumstances, it is proper for counsel immediately to draw his attention to it.

43. After this intervention the judge proceeded with his summing-up again referring to S.4(1)(a) saying:

"So what the Crown is saying, is that Shing's proceeds of drug trafficking would be any payments or rewards received by him in connection with drug trafficking carried on by him or by another person. So there it is not only restricted to Shing, but another person also, any other person, and then that may be taken together with 25(2), which reads this way. That is part of section 25(2). In this section, reference to any person's proceeds of drug trafficking include a reference to any property which in whole or in part, directly or indirectly represented in his hands his proceeds of trafficking. Now, there the reference relates to an arrangement and talks of partly the proceeds of drug trafficking, any person's proceeds will include any property, which in whole or in part, directly or indirectly, was in his hands as being proceeds from his drug trafficking."

44. The judge then returned to S.25(1)(a) and pointed out that:

"So if in this present case, the 1st defendant at any time received any payment or reward connected with drug trafficking, carried on by him or by another person, anywhere in Hong Kong, in Australia, then he would have benefited from that drug trafficking. In other words, the whole emphasis is that here, you are dealing with one man, but he may have benefited by receiving payments, rewards, from other people. And then, this what it comes to, if D1 at any time, received a payment or reward connected with drug trafficking, carried on by him or another anywhere, he may be sitting right in front of me, he may be sitting in another corner of the world, anywhere, then he would have benefited from that. He may have benefited even from the drug trafficking by another because he gets the money in his hand."

45. He there dealt properly with the words "benefited from drug trafficking". He was concentrating as regards these two charges on "benefited from drug trafficking" rather than upon "carried on drug trafficking".

46. He went on to deal with the "arrangement which facilitates the retention or control of this man Shing's proceeds of the drug trafficking". There was no real issue as to the applicants' involvement in an arrangement which facilitated the retention or control of money. The issue was, as the judge then told the jury, whether "they were concerned in this arrangement for retention or control by Shing of the proceeds of his drug trafficking - they did that - they entered into that arrangement while knowing or having reasonable grounds to believe that Shing had carried on or was carrying on drug trafficking or had benefited from drug trafficking". He told the jury that "benefiting from drug trafficking" meant simply obtaining "a benefit or reward from any other person". He went on to say that the arrangement had to be entered into as "a conscious act". This strayed a little from the wording of the section but the judge immediately went on to say:

"So the main thing is that, as I have explained all this, the mental element - mens rea - mental element of the offence is knowing or having reasonable grounds to believe that these ladies, when they entered or concerned themselves with this arrangement, that they did that knowing or having reasonable grounds to believe that Shing, D1, was connected with or had benefited from drug trafficking."

47. No objection can be taken to the summing-up to this point. The judge then went on to tell the jury that when considering the words "knowing or having reasonable grounds to believe" they

"must distinguish, keep these two things apart - believing, belief and knowledge - these are two different things. Belief is mental element which is lesser than knowledge. Knowledge is when you know something yourself...... Belief is something less than knowledge. So this belief, in the minds of these two ladies, in counts two and three, they must have had reasonable grounds to believe that D1 was involved in and carrying on in drug business and drug trafficking or had carried on drug trafficking, or had benefited from drug trafficking. That is number one."

48. Here the judge was wrong as he was directing that it was incumbent upon the prosecution to prove either knowledge or belief, which he characterized as "something less than knowledge", in the minds of the defendants. The test is, in fact, not so high. The prosecution has to prove knowledge of trafficking or that a defendant had reasonable grounds to believe that there was trafficking. The prosecution is not called upon to prove actual belief. It would be sufficient to prove reasonable grounds for such a belief and that the defendant knew of those grounds.

49. The judge went on:

"And number two is that their belief must be based upon reasonable grounds. So these are the two things there in believing. They believed, they may have believed, or under the law, they believed or they must have formed this belief in their minds, that D1 carried on or had carried on drug trafficking or had benefited from drug trafficking. And for that belief, there must be reasonable grounds upon which it is based."

50. The judge, having given an example of the way in which a belief could be formed, went on:

"Then the question that becomes relevant is whether looking at those factors, having that information which these two ladies, D2, D3, had at the time they formed that belief in their minds, whether a reasonable person would also be of that same opinion, same view. And looking at the information which they had when they formed this belief in their heads and their minds, that D1 was carrying on or had carried on drug trafficking or had benefited from drug trafficking, whatever a reasonable person would have formed that belief on the same information. That also comes into your consideration. You have got to consider all that."

51. In the passage above, the judge again incorrectly indicates that the question for the jury is whether "these two ladies ... had ... formed that belief in their minds". He then poses a second matter for resolution - "Whether a reasonable person would also be of that same opinion, same view .... Whatever a reasonable person would have formed that belief on the same information".

52. He has here recognized that he is dealing with subjective and objective elements. He has placed the former, i.e. that there must be belief by the defendant, too high. It is necessary only to prove that the defendant knew of the grounds. In this trial there was no issue in this regard as both defendants admitted knowledge of the grounds upon which the prosecution was relying. He has similarly placed too high a burden on the prosecution as regards the 'objective element, i.e. the belief of the reasonable man.. The jury did not have to be satisfied that a reasonable person would have held such a belief but only that such a person would be satisfied that there were grounds sufficient to sustain such a belief. Clearly if the jury was satisfied that a reasonable person would have held such a belief, in accordance with the direction given by the judge, then they must have been satisfied that the grounds were sufficient to sustain such a belief.

53. As to both the subjective and the objective element, the judge placed too high a burden on the prosecution by telling the jury that they had to be satisfied that the applicants had formed that belief "in their heads and their minds" and that, when considering that, they had to take into account whether "a reasonable person would have formed that belief on the same information". There was, however, no injustice done to the applicants by these directions as they placed a higher burden of proof upon the prosecution than is stipulated by the section. In fact, they favoured the defence.

54. The judge went on to deal with the facts relating to Count 2. He said:

"And you will consider that on the basis of the law that I explained to you, whether Kwong, the 2nd defendant, had actually at that particular time during those seven months, formed a genuine belief in her own mind that Shing, with all that money that was coming in, had carried on or was carrying on, or had benefited from proceeds of drug trafficking by another person. And if you come to that conclusion, then, of course, she had concerned herself with that arrangement which is stated in count two, acting on that belief which she formed on information that she had at that particular time, and you will ask yourself, well, she formed that belief, all right, but would any other reasonable person having that information come to the same conclusion?"

55. In the first part of this passage when the judge mentioned "genuine belief" he is clearly speaking of a knowledge rather than belief. The words "a genuine belief in her own mind" could mean nothing else. In the latter part of the direction he turns to "belief formed on information" and again tells the jury that they must ask themselves did she form that belief and would a reasonable person have formed it. What we have already said applies equally to this direction and to the further reference made shortly thereafter to "a genuine belief". He then dealt with the statutory defence telling the jury that they had to

"also consider whether the evidence gives rise to the statutory defence which is open to her, and that is whether she did not know or suspect that the arrangement related to any person's proceeds of drug trafficking, any person's proceeds, or two, that she did not know or suspect that by arrangement, the retention or control on behalf of the relevant person - that is Shing - of any property was facilitated.

So if you are satisfied that she knew, then, of course, this defence is negatived. Remember that this is a statutory defence. The lesser burden as I explained is on the defendant. Now, she says, I did not know, all right? She says it was Ah Mo's money. She is not denying that she had received this money, but she says it was Ah Mo's money."

56. He said finally:

"You will keep in mind this concept of benefiting from drug proceeds. And if you are satisfied so that you are sure, having considered all the evidence, and that includes the evidence for the defence, taking all that into account, if you reach the conclusion that she concerned herself with this arrangement, with that knowledge and mental element that I explained to you earlier on the basis of the information which was available to her at that time, then you will find her guilty of count two because then all the ingredients of the offence would have been proved. You would have considered her defence. You would have been alive to the fact that the defence, the burden on her to make out that defence is on the basis of balance of probabilities, and having done all that, if you arrived at the conclusion that the charge has been proved beyond a reasonable doubt, then you convict her."

57. The judge then went on to conclude, and this passage is subjected to criticism by the applicants, saying:

"But if you come to the conclusion that you accept her evidence, then you say to yourself, well, we have looked at everything, we have tried to peep into her mind, and we have considered what a reasonable man with all that information might think, if you come to the conclusion that she is telling the truth, or that her version might be true or you are left in any doubt about the prosecution case, then you will give her the benefit of that doubt and find her not guilty."

58. It is suggested that the words "we have considered what a reasonable man with all that information might think" are a misdirection. The judge was here repeating his objective test to which we have already referred. It is true, as we have already said, that it is a misdirection but it was one which favoured the applicant. It was not necessary to prove either that the defendant had actually held the belief or that a reasonable man would have held it but only that the defendant knew of the grounds and that they were such as a common-sense, right-thinking member of the community would have said were sufficient to establish such a belief. If it were proved that such a person would have held that belief, then it must also have been proved that he was satisfied that there were grounds for the holding of it.

The judge then told the jury to apply all he had said in relation to the second count to their consideration of the third count.

59. It is true that there were misdirections but they were such as would have worked to the benefit of the applicants. We are satisfied that the jury, following the directions that were given, must have been satisfied that the applicants either knew or had reasonable grounds to believe that Shing was a person who carried on or had carried on drug trafficking or had benefited therefrom.

60. In Count 4 which concerned the 1st applicant, the judge told the jury when dealing with that applicant:

".... It is for you to be satisfied that he did deal with that property knowing or having reasonable grounds to believe that the property was any person's proceeds of drug trafficking. You have heard on that evidence, the Australian part of it, and you have heard of his connection with that. You will keep that in mind and think, well would a reasonable person come to that conclusion."

He did not go on to explain again the words "knowing or having reasonable grounds to believe" but they must have had fresh in their minds the explanation which he had just given. What we have said above applies. The direction erred only in so far as it placed too high a burden on the prosecution.

61. All of the applications are dismissed.