THE HKSAR v. YAU KONG SHING

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 276

(Criminal)

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J U D G M E N T

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Liu JA:

1. At 6.00 pm on 7 March 1993, constable Yeung together with a party of police lay in ambush in what was described as a "drug operation". A black motor-scooter with the applicant as its rider came and stopped outside the Junior Police Call Club House in Sheung Shui Wai. Constable Yeung kept the applicant under close observation: the applicant pulled out a bunch of keys from the front of the motor-scooter, of which one was used to open the box at the rear. The applicant took out a black plastic bag from the box, re-locked it and took the black plastic bag to the front glove compartment, having opened it with another key. The applicant locked up the front glove compartment, walked to the rear of the motor-scooter and waited some three paces away. The applicant was looking around as if he was expecting someone. The police party waiting in ambush closed in on the applicant, revealed their identity and told him that he was suspected of having drugs on his person. The applicant gave no reply but put up no resistance when he was searched. Constable Yeung noticed the applicant to be nervous. After the search, the applicant was, in fact, shaking. The applicant was asked by Constable Yeung whether the motor-scooter belonged to him and again the applicant did not reply. Constable Yeung took over the keys from the applicant and told him that drugs were suspected to be in the motor-scooter and that he was to conduct a search. Again, the applicant did not reply. The motor-scooter was searched in the presence of the applicant. From the box at the rear and the front glove compartment, eight plastic bags in all were found containing lumps of white substance suspected to be dangerous drugs. Of these plastic bags, seven were recovered from the box at the rear, one from the front glove compartment . From the glove compartment, constable Yeung retrieved the black plastic bag placed there by the applicant. Inside the black plastic bag was one of these eight transparent plastic bags which were counted in the presence of the applicant. After constable Yeung had counted these plastic bags, he asked the applicant if he knew what those things were. Thereupon, the applicant said "Sze Chai".

2. The prosecution claimed that the substance in these plastic bags was certified by the Government Chemist to be heroin. Chief Inspector Ma also gave evidence that "Sze Chai" meant No. 4 heroin.

3. The applicant was duly convicted by a jury after trial and he now seeks leave to appeal against his conviction.

4. In his summing up, having recounted the incident, the judge said :

"The next thing that happens is that the officer who arrested the accused said to him, 'What's this?', and the accused said, according to the police, 'Sze Chai'." (Emphasis supplied)

5. The applicant gave no evidence. But from his police statements, he denied knowledge of the existence of the substance, he denied knowledge that it was heroin and he also denied knowledge that he had it. In his summing up, the judge directed the jury's attention to such denials. The jury were particularly instructed that the applicant denied being the owner of the motor-scooter or in possession of the contents of the box at the rear and the front glove compartment. The judge succinctly summed up for the jury's consideration these questions:

"You can only be liable for possessing something if you know you have got it and that is, of course, as I have said to you, an essential element here. Unless you are sure he knew that he had it and what it was, then you will acquit."

6. The judge had earlier warned the jury that they "must look at the evidence as a whole". The judge referred to the applicant's answer, "Sze Chai", as part of the incident, being, he said, "the next thing" that followed the search and confrontation. It is clear that the judge did not address the answer "Sze Chai" in isolation, and this is what the judge said in his summing up:

"Now, if at this point you were sure that the drugs which reached the Government Chemist were the drugs over the substance found in the motor-scooter, and you were sure the accused said, 'it is Sze Chai', and you were sure that Chief Inspector Ma is right when he says, 'that means No. 4 heroin', then you have drugs ----- you have an admission as to what they are, which infers knowledge that he had them, and that would be enough to convict".

7. Thus far, it would seem that the judge's direction is not open to criticism. Obviously, once the answer is taken as an admission of his knowledge of the nature of substance found in the plastic bags, seven in the rear and one in front whilst the applicant stood waiting, the jury may infer from it that the applicant kept in the scooter driven by him this substance. But counsel for the applicant, Mr Macrae took exception to what the judge said about admission and what he said later in his summing up that the reply "Sze Chai" was direct evidence of the applicant's knowledge of the nature of the substance, his knowledge that they were there in the scooter he had driven and his knowledge that he had the substance in that scooter. It is to be noted that the judge dealt with that reply in the circumstances in which it was given. This forms ground 1 in the applicant's Notice of Appeal.

8. For a better illustration of the applicant's complaint in ground 1, Mr Macrae reminded us of the trite law re-stated in DPP v. Brooks [1974] AC 862 at p. 866A - E and p. 866 H - 867 C in their Lordships' judgment delivered by Lord Diplock:

"Since R v. Livingston, 6 JLR 95 was the foundation of the judgment from which the instant appeal is brought, it is however important to see what it was that that case did decide. The defendant, Livingston, was a baggageman employed by bus owners who were common carriers. He took into his custody from a consignor for carriage on the bus on which he travelled as baggageman a sack which were found to contain ganja. It was argued that there could not be ' possession' within the meaning of section 7 (c) without knowledge of the thing possessed. The Court of Appeal formulated four questions as being those which arose for the determination at p. 97:

'(1) Could the temporary dominion or control which the appellant had over the ganja as baggageman on the bus amount to possession within the meaning of s. 7 (c) or was it merely custody or charge?

(2) Does possession in s. 7 (c) of a Dangerous Drugs Law require that a defendant, before he can be convicted, must be shown to have had knowledge that he had the thing in question?

(3) If so, must the defendant, before he can be convicted, be further shown to have had knowledge that the thing which he had was ganja?

(4) If the answers to questions (1), (2) and (3) are in the affirmative, was there evidence of knowledge by the appellant in this case upon which the magistrate could properly find him guilty of the offence charged?

Their Lordships would observe that questions (1) and (4) are special to the facts of the Livingston's case, and that question (1) is not about the knowledge that a person has about a thing that is in his physical custody or control . That is dealt with separately in questions (2) and (3). These two questions are not special to the facts of Livingston's case but deal with principles of law of general application as to the extent of the two different requirements of knowledge on the part of the defendant needed constitute the mental element in a criminal offence of having in one's possession a dangerous drug."

"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs. Question (1) and the reason given for the answer, however, suggest that, in addition to the mental element of knowledge on the part of the accused, which the Court of Appeal had chosen to deal with separately in questions 2 and 3, the word ' possession' imported into this criminal statute as a necessary ingredient of an offence against public health the highly technical doctrines of the civil law about physical custody without ownership as a source of legal rights in the actual custodian against third parties and about the legal relationships between owner and custodian which bring about the separation of propriety and possessory rights in chattels. If this is the implication to be drawn from this part of the judgment in R v. Livingston it is, in their Lordships' view, wrong. These technical doctrines of civil law about possession are irrelevant to the field of criminal law. The only actus reus required to constitute an offence under s. 7 (c) is that the dangerous drugs should be physically in the custody or under the control of the accused. The mens rea by which the actus reus must be accompanied is the kind of knowledge on the part of the accused that is postulated in questions (2) and (3)."

9. Counsel therefore submits that the reply "Sze Chai" was a mere innocent recognition of the substance, not an admission. Counsel would not put it beyond an educated guess on the part of the applicant from his general knowledge of affairs in life, linking white powder heroin with the all too prevalent drug trafficking in Hong Kong. It is submitted that mere knowledge of the nature of the substance as given in the reply "Sze Chai" could not be evidence of the applicant's knowledge that he was in possession of it. Counsel argues that the judge was wrong to direct the jury that the reply "Sze Chai" was an admission of the applicant's knowledge of the nature of the substance, the applicant's knowledge of where that substance was kept and consequently the applicant's knowledge that he had so kept it.

10. But what must not be lost sight of is the fact that the judge addressed the reply "Sze Chai" as part of the incident in which seven plastic bags of substance were found in a box at the rear and one plastic bag containing a similar substance found in the black plastic bag which had earlier been taken from the rear to the front glove compartment by the applicant. The applicant's reply was given unhesitatingly to the enquiry of constable Yeung at the time of his confrontation with this substance after search. If a carrier of a bag containing suspected dangerous drugs were caught in a stop-and-search scenario and he promptly gave an answer "Sze Chai" to police enquiry as to what the substance was, that would be evidence on which a jury could decide that he knew the nature of the substance which had been just removed from his bag and with which the police confronted him. The prompt reply "Sze Chai" concerning the nature of a very incriminating substance would also be, in those circumstances, evidence on which a jury could decide that the carrier of the bag knew where it was kept before seizure and that he knew he had it at the time when he was stopped and searched by the police. An instantaneous reply given in like circumstances by a rider of a motor-scooter, as in the case of the appellant, was therefore evidence on which the jury could decide that he knew what the nature of the substance was, that he knew where it was kept in the front and rear receptacles and that he knew that he had possession of it in those places before the police seized it to confront him. When the spoken words "Sze Chai" were considered against this setting, it was open to the jury to find in these words the applicant's requisite knowledge of the dangerous drugs such as to constitute possession. Ground 1 has been attractively advanced but in the final analysis it has no merit.

11. Ground 2 of the Notice of Appeal is concerned with the lack of caution administered by constable Yeung to the applicant. It is submitted that at least by the time the applicant had gone through a body search, a motor-scooter search, an enquiry as to ownership of the motor-scooter and a seizure of the eight plastic bags containing suspected dangerous drugs, a caution should have been administered to the applicant before constable Yeung proceeded further to ask him if he had any knowledge what the substance was. After all, the applicant was silent when constable Yeung told him that he was going to give him a body search and when constable Yeung enquired if the motor-scooter belonged to him. But the rules for administering a caution are for the guidance of police officers so as to ensure that they conduct themselves fairly to a suspect. No exception was taken to the giving of evidence by constable Yeung at the trial nor was the admissibility of the applicant's reply of "Sze Chai" challenged. Whilst we acknowledge the need for a caution in the circumstances, this court has not been told as to whether counsel for the applicant accorded much or any significance to the lack of caution in his address to the jury. However, the judge was not urged to remind the jury that the reply was given without a caution. We are not prepared to say that the absence of any reference made by the judge to that reply as an uncautioned reply in his summing up had caused real prejudice to the applicant. The applicant cannot succeed on ground 2.

12. Ground 3 of the Grounds of Appeal raises a complaint in the reference made by the judge to "some consistency" in an aspect of the evidence of Wu Sing and one Yim. Wu was the registered owner of the motor-scooter. In November 1992, he sold it to Yim who, in turn, sold it to the applicant later in the same month. The defence case as put to Wu and Yim in cross-examination was that they, Wu and Yim, had some complicity in the ownership of the drugs in the case. It was specifically put to Yim that the drugs belonged to him, but Yim denied it. Both in chief as well as in cross-examination, Wu was asked about his knowledge of the motor-scooter after he had parted with it to Yim in November in 1992. Wu's ownership registration of the motor-scooter had not been changed. Wu testified that he was told in December by Yim that Yim had sold the motor-scooter on to the applicant. What was told by Yim to Wu in the absence of the applicant was clearly hearsay. It was complained that in the absence of any charge of recent fabrication in the ownership evidence, no question of consistency arose and that hearsay evidence should not have been introduced by the trial judge for demonstrating consistency in such testimony, which had no relevance.

13. Not only was Wu asked questions in chief and cross-examination about his knowledge of the motor-scooter after he had sold it to Yim in November 1992, counsel for the applicant raised the ownership issue by putting questions to Yim although the applicant gave no evidence at the trial. It was suggested to Yim that the motor-scooter was not owned by the applicant from November 1992 to March 1993, the charge date, that Yim had in fact continued to be its owner, and that it happened to have been taken out by the applicant for a ride after Yim had gone to bed. These questions put to Wu and Yim as to ownership and the possession of the motor-scooter as at the charge date were clearly designed to generate doubt in the mind of the jury as to whether in fact the applicant was the owner of the motor-scooter and in possession of the contents of its receptacles at the time when he rode it to the Junior Police Call Club House on the charge date. Viewed in this light, the judge was entitled to direct the jury that there was no conflict in the ownership evidence between Wu and Yim and that in fact there was "some consistency" in the conduct of Yim when he volunteered the information to Wu in December 1992 of a sale to Yim in the previous month. It was hearsay evidence in a conversation which took place in the absence of the applicant, but the judge rather focused on the conduct on the part of Yim, which was not inconsistent with the challenged evidence of an alleged sale to the applicant in November 1992. In any case, this is not a point of real substance, on which we would be prepared to disturb the verdict of the jury. Ground 3 fails.

14. The alleged doubt in the chain of evidence relating to the drugs and their examination by the Government Chemist forms the subject-matter of ground 4. There was some confusion as to dates, which the officer-in-charge of dangerous drugs exhibits failed to rectify after he had been informed of this by the Government Chemist. The drug exhibit officer admitted that there was only his evidence to establish the drugs in question as having been in the "DD Box", the dangerous drugs cabinet in the duty office, between 9 March to 13 March 1993. There was no documentary or other evidence to support this fact. In his summing up to the jury, the judge gave the following directions:

"I cannot do more than point out to you those factors which are consistent with the evidence of the dangerous drugs PC and those facts or factors which indicated that the evidence is not to be relied upon. This is your function. You are going to have to look at all that evidence, the nature of the packaging, all that you have heard and decide not has the constable been mistaken, not has the constable tampered with this drugs, not has he been careless, they are not decisions to make. What you do is you look at all that they have heard, including all that he did and all that happened to this drug and say to yourself, 'can I be sure that the substance analysed by the Government Chemist is the substance taken from the motor-scooter? If you are not sure, you will acquit. If you are sure, then you look at the rest of the evidence together with the law that I have given you and decide whether or not you may convict."

15. Understood in its proper context, the judge was reminding the jury not to single out any particular aspect for consideration, for instance, the question as to whether or not the constable had been mistaken, the question as to whether or not the constable had tampered with the drugs and the question whether or not the constable had been careless. None of these was evidently the crucial decision to make. But the judge had not invited the jury to ignore these issues. In fact, he instructed the jury "to look at all the evidence" and "all that (they had) heard" and decide the core question as to whether the substance finally analysed by the Government Chemist was substance taken from the motor-scooter. There is nothing in ground 4.

16. We have had helpful submissions from Mr Macrae on behalf of the applicant. In all the circumstances, we do not find the verdict either unsafe or unsatisfactory. The application of the applicant is therefore dismissed.