THE QUEEN v. CHAN SUI CHEE

IN THE COURT OF APPEAL

1987, No. 110
(Criminal)

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JUDGMENT

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Power, J.A.:

1. The applicant was charged that he, AU Siu-ho and another person not in custody, on 22nd September 1986 out side 12-11 Oxford Road, Kowloon Tong, had in their possession a dangerous drug, namely, 3,184.60 grammes of a mixture containing 232.30 grammes of salts of esters of morphine for the purpose of unlawful trafficking. Briefly stated the facts were that Police Constable 921 on the afternoon of 22nd September came upon the two defendants and a Mr. Wong, the “other person”, in a red Toyota car bearing registration number DL 5002. The constable seized the identity cards of all three persons and the driving licence of the applicant and on a search of the car found the dangerous drugs. All three then fled but the applicant was followed and apprehended. AU Siu-ho was apprehended some two weeks later. There was no dispute that the keys of the car were in the possession of the applicant, that he had control of the car and that the drugs were found in a box in the boot of the car. The applicant at all times maintained that he had only discovered that the box contained drugs when told so by Au a short time before the constable arrived on the scene and that he was at that time telling Au to remove t he drugs from the car as he wanted to have nothing to do with them.

2. It was the first ground of appeal that the trial judge while directing the jury correctly as to the operation of the presumptions, had failed to direct them that toe applicant's defence could, if believed, rebut those presumptions. It was conceded that the judge made a formal statement that evidence either from the defence or indeed from the prosecution could rebut the presumptions. He did so in the clearest terms as follows:

“Well, in his case he gave evidence. So that if that evidence you find rebuts the presumption, in other words, if you find his evidence establishes that it is more likely than not that the presumptions should not apply, then of course you must acquit him. But it is not only to his own evidence that he car look in order to rebut the presumptions. Both he and the 2nd defendant can look to the prosecution evidence to establish on the balance of probabilities that the presumptions are rebutted. But if, on a review of all of the evidence, both prosecution and defence, the 1st and 2nd defendants, or either of them, can establish on the balance of probabilities that the presumption should not arise; then they do not arise. Any doubt you have about that must be resolved in favour of the defendants.”

What, however, was complained of was that the judge did not in terms explain to the jury how the evidence actually given by the applicant, if believed, could be used to rebut the presumption of possession. The evidence when considered in the light of the presumptions did give rise to complications because the applicant was admitting that, at the time of his apprehension, he knew the drugs were in the boot and that he was in control of the car. The defence suggestion seems to be that the judge should have dissected this evidence showing how, if it was accepted on the balance of probabilities, it could be used to rebut the presumptions. Such a dissection would have been technical and complex and might easily have been misunderstood even by an attentive and intelligent jury. What the trial judge did, sensibly in our view, was to tell the jury that if they believed the story of the applicant they should accept that he had rebutted the presumption and acquit him. He gave this direction in clear terms on three occasions during his summing-up. He first said:

“And so far as his evidence is concerned, if you believe it, then you must acquit him. If it merely creates a doubt in your mind about the prosecution case against him, you must acquit him”

He came back to this shortly thereafter saying:

“The 1st defendant gave evidence which, if believed, would exonerate him and incriminate the 2nd defendant.”

And he returned to it again saying:

“If you believed his story, you would acquit him and could convict the 2nd defendant.”

3. We are satisfied that this must have left no doubt in the mind of the jury that if they believe the evidence of the applicant, or if it created a doubt in their mind, they must acquit him. Indeed it might be suggested that the alternative direction was more favourable to the applicant than was his entitlement.

4. The further argument of Mr. Macrae was, however, that even if the direction of the judge as to the rebuttal of the presumptions was correct, the summing-up was fatally flawed by a remark which he made after he had given the directions set out above. Having told the jury that it was not necessary for the Crown to prove that either the defendants owned the drugs or that they were financially involved in investment therein he went on to say:

“You could take the view that all are mere agents acting for others who are not named and not mentioned. The evidence certainly allows for that construction and does so even if you accept the 1st defendant's account of the events.”

Mr. Macrae says that this was clearly wrong as the trial judge was saying that, even if the evidence of the 1st defendant was accepted, it still allowed for the construction that he was acting for others as agent in connection with the drugs.

5. The Crown concede that the direction, in its terms, was wrong and suggest that what the judge was intending to convey was that even if the 1st defendant's (the applicant's) evidence was true the 2nd defendant might be an agent. Whether this was what the judge meant to convey we cannot say, but unarguably the words used were a misdirection. What we must ask ourselves is whether the Summing-up when looked at as a whole can have left the jury in any doubt that if they accepted the version that the applicant gave then they must acquit. When we bear in mind the clear and repeated directions set out above we are satisfied that the jury can have been left in no doubt in this regard and that this was not a material irregularity.

6. The second ground of appeal is that the trial judge in his Summing-up told the jury that if they believed the 1st defendant they should convict him. In this passage he was dealing with the evidence of the 1st defendant insofar as it could be used against the 2nd defendant. What he said was:

“You may convict the 2nd accused on the evidence of the 1st defendant without corroboration if you are satisfied so that you are sure that he is telling you the truth, but I have to tell you, and in the circumstances of this case, perhaps you might well need no convincing, that it would be very dangerous to do so.

Mr. McLanachan asked me to act as a referee between himself and Mr. Cheng Huan as to whether or not the presumptions arise in the case of the 2nd defendant out of the evidence of the 1st defendant. Ladies and gentlemen of the jury, let me simply say this, that the matter does not arise because if you accept and believe the evidence of the 1st defendant, then you'll believe that the 1st defendant knew what was in the box, knew it was heroin and had it for the purpose of trafficking, so that there is no need to discuss the presumption in relation to the evidence of the 1st defendant against that of the 2nd defendant.”

7. Mr. Macrae submits that this is a clear direction, that if the 1st defendant's evidence was believed he should be convicted as charged. It is quite clear that the trial judge made a slip of the tongue when he said:

“Then you believe that the 1st defendant knew what was in the box.”