THE QUEEN v. WONG KWOK KEUNG

IN THE COURT OF APPEAL

1992 No. 345
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. This is an application for leave to appeal against conviction for possession of dangerous drugs for the purpose of unlawful trafficking by Deputy Judge Leong Q.C. and a jury on the 18th of August 1992.

2. The evidence adduced by the Crown was simple. On the 12th of May of 1992, a container lorry, DB4788, driven by the applicant, stopped at the Mankamto customs check point. The applicant presented a manifest stating that the vehicle was empty but it was searched by Customs officers. The vehicle had two tool-boxes incorporated into the frame. The first of these was opened with a key which was in the possession of the applicant and it was found to contain nothing of an incriminating nature. The second tool-box could not be opened because it was padlocked and the key was not in possession of the applicant. The padlock was opened with the use of pliers and the tool-box was found to contain four plastic bags in which were 2709 grammes of a mixture containing 2296 grammes of heroin. There was a pair of keys in the cab of the lorry, which, while they fitted into the lock, would not open it

3. The applicant did not make a statement at the time apart from saying that he did not have the keys to the padlock There was evidence from the Customs officers that he appeared to be somewhat flustered, but there was some conflict in the evidence as to whether that was before the search of the tool-box or afterwards.

4. Evidence for the Crown was in the form of an agreed statement and oral evidence was given by the Customs Officers who conducted the search. The applicant himself did not give evidence.

5. The trial judge correctly directed the jury that there were four matters upon which they had been satisfied. The first three of those were: (a) was the applicant the driver of the truck, (b) were the contents of the tool box dangerous drugs and (c) had they been imported into Hong Kong in the truck. None of these were in dispute and the trial judge rightly focused her directions on the fourth ingredient the Crown had to prove - was the applicant in possession of the drugs in that he knew what was in the tool-box. The Crown did not rely on any statutory presumption of knowledge and the jury therefore had to be satisfied beyond reasonable doubt that the applicant did have such knowledge. The jury were so directed in the clearest possible terms. They were also given an impeccable direction as to the criminal standard of proof and no complaint is made as to those directions.

6. It is however a ground of appeal argued by Mr. McCoy, who appears here for the applicant, but not at the trial, that there was a direction which was then given regarding what inferences the jury could come to from the evidence. This was in the following terms :

“Now, there is a very strong inference of fact in any normal case that a man who possesses a parcel or a container also possesses its contents : an inference upon which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel or a container normally accepts possession of the contents." She went on a little later:-

"Now if you feel, members of the jury, that there is a strong inference of fact that the defendant was in possession of those matters found in the tool-box, then has he, the defendant, created a doubt to that inference that although the lorry and the tool-box were clearly in his possession, the contents were not. That is the matter for you. Has the defendant shown that he might have received the contents innocently, that he genuinely believed that the tool-box contains tools, or gloves, or waste etc. and that he had no reasonable opportunity of examining the contents of the tool-box."

7. That direction is clearly based on dicta in R v Warner 1962 2 AC 257. The evidence there was that the appellant had collected two parcels from a person from whom he was accustomed to receive scent. However when the van he was driving was stopped and searched one of the parcels was found to contain amphetamine sulphate tablets, not scent. The court considered whether the effect of Section 1 of the Drugs (Prevention of Misuse Act) 1964 was to create an absolute offence, which is not suggested here, but at p307 Lord Pearce said:

"If a man has physical control or possession of a thing that is sufficient possession under the Act provided he knows he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel but have they proved that he possessed its contents also? There is a very strong influence of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case he justified in finding possession. A man who accepts possession of a parcel normally accepts possession of its contents."

8. Mr. McCoy in his grounds of appeal contends that the majority decision in Warner holding that the section created an absolute effence was wrong and the dissenting speech of Lord Reid should be followed. Warner is inconsistent with the later decision of Sweet v Parsley [1970] AC 132. He did not however press that argument, Lord Reid also sat in the House of Lords in Sweet v Parsley and he reiterated the view he expressed in Warner that the offence was not an absolute one - which was the issue -mens rea had to be proved.

9. Warner was also referred to by Lords Morris, Pearce and Wilberforce and none of them said anything which could be taken as expressing doubt with their earlier reasoning. Lord Pearce said, at p158. “By the term "absolute" I mean an offence to which the normal assumption of mens rea does not apply but in which the actual words of the offence (without any additional implication of mens rea) may well import some degree of knowledge, as for example the word "possession" as in Warner’s case. In saying that the section relating to possession (which was there under discussion) was absolute, I was using (as the context was intended to show) that loose anti convenient sense which had been used in argument”. Lord Diplock (who was the only Law Lord in Sweet v Parsley who was not party to Warner) also referred to that decision and said “to take a recent example; to have in ones "possession" a prohibited substance connotes some degree of awareness of that which was within the possessors physical control. Reg v Warner”

10. In both Warner and Sweet v Parsley the House of Lords clearly thought that there should be a statutory provision that a person who is proved to be in physical possession of a parcel or other container should be presumed to know what was in it unless the evidence, either that of the accused or as contained in the prosecution, showed to the contrary, on a balance of probabilities. That is exactly what Section 47of the Dangerous Drugs Ordinance, Cap 134, does provide but here, while the applicant did have the keys to the lorry and if the drugs had simply been inside it the presumption would have applied, they were in a locked box to which the applicant did not have the key. No reliance was place on that section by the Crown and the jury were therefore rightly not directed on it

11. The evidence in Warner was very different from that in this present case. There the defendant had a parcel beside him in the van which he could have opened at any time. The applicant here was the driver of a large lorry incorporated into which was a locked tool-box to which he did not have the key. We do not consider that Lord Pearce would have used the words he did in Warner in relation to an inference of knowledge which could be reached on the facts here.

12. Mr. McCoy submits that the judge has directed the jury on the basis that there was a presumption of possession which would only have existed if the applicant had been in possession of the key of the tool-box.

13. It had been said on many occasions that a summing-up should be looked at as a whole and that this court should not interfere where there is a misdirection which does not go to the extent of the denying the applicant a fair trial. However we consider that the paragraph complained of was an important part of the directions and that it constituted a material misdirection in that it wrongly placed an onus on the applicant to prove that he did not know the contents of the tool-box. Although the jury were very fully directed that they had to be sure of the applicant’s guilt, that paragraph, as was suggested by defence counsel at the trial to the judge the end of the summing-up, did have the effect of placing an onus on the applicant to show that he did not know the contents of the tool-box. We consider therefore that this verdict cannot be regarded as safe or satisfactory. The Crown’s evidence here was by no means overwhelming and this is not a case for the application of the proviso.

14. The application is allowed. We treat this as hearing of the appeal which is allowed, the conviction quashed and the sentence set aside.

15. The Crown does not seek an order for re-trial.