KWAN Wing-cheong v. R.

IN THE COURT OF APPEAL

1993, No. 643
(Criminal)

___________

_______________

J U D G M E N T

_______________

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

1. This is an application for leave to appeal against the conviction on two counts of possession of dangerous drugs for the purposes of trafficking.

2. The Crown's case was simple. On the 5th October 1992, outside Lung Gut House, Lower Wong Tai Sin Estate, the applicant was arrested by police officers and it was their evidence that he was in possession of a Giordano paper carrier bag inside which were various plastic bags, some white, one pink. Inside those plastic bags was 203 grammes of heroin containing approximately 100 grammes of pure narcotic and also 2.2 kilogrammes of herbal cannabis.

3. The applicant elected to give evidence and he called witnesses. His evidence was that he was not in possession of this Giordano bag at any stage, that the police officers were lying and he had been framed by them. There was another man involved called Ah Keung with whom the applicant occasionally stayed and the allegation was that the police officers were angry at the applicant because he had "tipped off" Ah Keung who was under police investigation. There is however no need to go into that evidence which clearly the jury rejected.

4. Mr. McCoy, who appears here for the applicant but not below, says that he can have no complaint with the directions which were given by the trial judge as to the onus of proof generally and accepts that the jury were told in emphatic terms that they had to be satisfied beyond all reasonable doubt that the applicant was in physical possession of the Giordano bag and only if they were satisfied about that beyond reasonable doubt would the presumption in s.47 of the Dangerous Drugs Ordinance came into play. Then it would be for the applicant, on a balance of probabilities, to show that he did not know what was in the bag. He said:

"If you were to be satisfied beyond a reasonable doubt so that you are sure that he was in possession of that bag and that those drugs that were produced were in the bag, then you would have very little difficulty in convicting him because the presumptions would not have been rebutted."

5. It is Mr. McCoy's case that this direction was wrong for, even if the defence is simply that a defendant was not in possession of a bag in which drugs were found, the presumption of knowledge of the contents of the bag may be rebutted on the Crown's own evidence alone. He gives as an example the person who is in possession of a suitcase which is locked and he does not possess the key. Even if the jury is satisfied that he was in possession of that suitcase, they would still have to look at the question of whether, bearing in mind the nature of the container and other evidence, on the balance of probabilities the defendant did not know what was inside it, notwithstanding that he may not have given evidence himself of the state of his knowledge. It may be that on the Crown's own evidence the presumption could be rebutted.

6. There may well be cases where that would be so but the evidence was that the applicant was carrying an unsealed paper carrier bag, photographs of which were produced, which show the bag and its visible contents. There was no other evidence which could have assisted them in deciding if the presumption had been rebutted. We are satisfied that on the evidence that was before the Court the direction given by the Judge was entirely adequate.

7. We are also satisfied, and indeed Mr. McCoy quite properly concedes, that even if his contention been well founded this would have been a case where the proviso would have to be applied, because the conclusion that the applicant did know what was inside the bag was, on the evidence, inescapable.

8. The application for leave to appeal against conviction is refused.

Sentence

9. The applicant also seeks leave to appeal against the sentences passed in respect of the two counts; one in respect of the heroin, the other for the cannabis.

10. Those sentences were of 9 years' and 18 months' imprisonment respectively of which 6 months is to be concurrent and 12 months consecutive, giving a total of 10 years.

11. Mr. McCoy does not complain in respect of the 9 years on the heroin count for clearly that is well within the guidelines in Lau Tak-ming (1990) 2 HKLR 370, 50 to 200 grammes of actual narcotic, 8 to 12 years. The applicant has one previous conviction for a drug related offence and this was a sentence passed after trial. Mr. McCoy does however contend that the sentence on the cannabis count should have been concurrent with that passed on the heroin count because all the drugs were found in the one bag at the same time and place.

12. We do not agree. Such an approach would have the effect of totally disregarding the cannabis which was a different drug to the heroin. If it had all been heroin, then only one sentence would have been passed. The presence of the cannabis added to the quantity of drug on which appropriate length of sentence had to be calculated. The judge had clearly taken into account the totality principle and made the sentence on the second count partially concurrent and partially consecutive. We do not see that he erred in so doing. The application for leave to appeal against sentence is also refused.