THE QUEEN v. KWONG KAI HIM AND OTHERS

IN THE COURT OF APPEAL

1986, No. 492
(Criminal)

BEWEEN

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JUDGMENT

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Power, J.:

1. When this matter came on for trial, there were 4 defendants. The 1st defendant, KWONG Kai-him, faced two counts of manufacturing dangerous drugs, one count of which he faced jointly with his brother, the 2nd defendant, one count of possession of dangerous drugs for the purpose of illegal trafficking, which he also faced jointly with his brother, one count of trafficking in dangerous drugs, which he faced jointly with the 3rd accused, and one count of simple possession of dangerous drugs. He pleaded guilty to all counts. He was sentenced to 14 years' imprisonment an each of the manufacturing counts, to 14 years' imprisonment on the count of possession for the purpose of unlawful trafficking, to 10 years on the count of trafficking and to 6 months on the count of simple possession of dangerous drugs. All sentences were ordered to be served concurrently. He now appeals against those sentences.

2. The 2nd accused, KWONG Kai-hung, faced one count of manufacturing dangerous drugs jointly with his brother, one count of possession of dangerous drugs for the purpose of unlawful trafficking, jointly with his brother, and an alterrrative count of being a tenant permitting premises to be used for the unlawful manufacture of dangerous drugs. He pleaded not guilty to all counts and after trial was found guilty on the second and third counts and acquitted on the first count. He was sentenced to imprisonment for 7 years on each count. The sentences were ordered to be served concurrently. He now appeals against those convictions. He originally appealed against his sentences but has now abandoned that appeal.

3. The 3rd defendant, YU Chun-hing, pleaded guilty to traficking in dangerous drugs and to possession of a forged travel document. He was sentenced to 6 years on the first charge and 6 months on the second charge. The sentences were ordered to be consecutive. He originally appealed against those sentences but has now abandoned that appeal.

4. The 4th defendant, WONG Siu-ping, pleaded guilty to one charge of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to imprisonment to 10 years on that charge. He now appeals against that sentence.

5. The evidence revealed that the 2nd defendant, who is appealing against conviction, negotiated in October 1985 with a Madam Lam to rent premises in Yuen Long known was Chun Sing Hong. When the negotiations were completed, however it being found that the applicant was under age, an elder brother, not the 1st defendant, signed the Tenancy Agreement. This Agreement was for a period of 3 years at a rental of $3,000 per month. The applicant suggested to Madam Lam that he pays the rent into her saving account and she agreed to the suggestion and gave him the number of the account.

6. Madam Lam said that she sent the first receipt to an address Tai Po which had been given to her by the applicant and that later upon his request, she sent the receipts to the address of the rented premises. She said that when the rent was late in March 1986, she rang the applicant at the Tai Po number and spoke to him about this and that the rent was then paid.

7. The applicant said in his statement to the police that he rented the premises to use as a store for building materials to be used by a partnership made up of himself and a man named “Ah-hung”. He said that the partnership got no work and that he therefore rented the premises to a Ho Ka-yu, Identity Card No. T1137815. He said that he gave the keys to Ho and that he had not returned to the premises since November 1985. He gave a description of Ho, which was found to fit a person named Ho Ka-yu whose Identity Card No. was G1137815. This person was called to give evidence and he stated that after a collison he gave his Identity Card No. to the other driver whose name was Kwong Kai-him which was the name of the 1st defendant. This evidence was not challenged nor was the evidence of an Immigration Officer, who said that identity card with the prefix letter 'T' have not yet been alloted. There was further no suggestion that this Mr Ho had ever taken over the lease of the premises. The applicant gave evidence saying that he had full-time employment as a maintenance man from August to December 1985 at the Energy Plaza in Tsim Sha Tsui East and that thereafter he had been employed at the Kadoorie Farm. He said that he saw his brother, the 1st defendant, irregularly. He said that while he was employed in Energy Plaza, beside his regular work, he did casual work which was mostly found for him by a man called Ah Hung, and that he and Ah Hung rented the premises paying $9,000 which consisted of one month's rent deposit, one month's rent in advance, and the November rent, in order to start up a business of their own. He said, however, that the business did not get any orders and that, at the end of November, he sub-let the premises to a friend of his brother at a rent of $3,500 per month. He said that the landlady was not told of the sub-leasing because sub-leasing was forbidden by the terms of the lease. He said that by the time of the trial, he had lost contact with Ah Hung. He said that he had got the name and the identity card number of the new tenant from his brother and that when the landlady rang him in March, telling him that the rent was in arrears, he spoke to his brother. He explained that he had said in his statement that he had rented the premises to Ho Ka-yu, leaving out mention of his brother because he was trying to protect his brother and that he was able to describe Ho because his brother had told him that the new tenant looked like him. The applicant, when giving evidence, did not try to maintain that the premises had actually been let to Mr Ho but said that he had been untruthful in this regard in an attempt to protect his brother.

8. Mr Adams, who appears for the applicant, complains as regards the third count that the trial judge misdirected the jury as to the matter of control and as to the application of the presumption under Section 47 of the Dangerous Drugs Ordinance.

9. The third count charged that the applicant, together with his brother, had in their possession a total of 14.243 kilogrammes of a mixture containing dangerous drugs at the rented premises at Yuen Long. The presumption with which we are concerned is contained in Section 47 of the Ordinance. It reads as follows:-

"47.(1) Any person who is proved to have had in his possession or custody or under his control -

(c) Any place or premises or the part of any place or premises in which a dangerous drug is found;

shall until the contrary is proved, be presumed to have had such drug in his possession.”

10. Two points arose out of the first 3 grounds argued by Mr Adams. Firstly, that the trial judge failed to tell the jury that, before the presumption arises, it must be proved that the accused was in a position to have control of the premises and secondly that in the present case, there was no evidence to establish that the applicant was in such a position.

11. Initially he took issue with the adequacy of the following direction at p. 5 of the summing-up:

"Members of the jury, you will ask yourself how can this quantity of drugs have been in the defendant's possession when he was not there. Well, I direct you firstly I can have something in my possession either if I have it in my actual custody, like holding a pen in my hand, that is in my custody, or having it under my control; for example a cheque book that I may have in a drawer in my room, I intend to exercise control over that cheque book. Now, here it is alleged that the defendant had control over these drugs. But before you convict on this count, you must be sure firstly that he was aware of the presence of the drugs, secondly that he knew that they were dangerous drugs, though not necessarily the exact kind or quantity that were found, and thirdly that he intended to exercise control over them.”

12. Mr Adams submitted that this was an inadequate direction as it failed to tell the jury that it must be satisfied that the intention must be coupled with the ability to reduce the dangerous drugs into possession if so desired" It is essential to bear in mind that the trial judge was here telling the jury what must be proved with regard to possession of the drugs. He was not, at that stage, directing them as to the presumption that arises under Section 47(1)(c) against a person in control of premises upon which dangerous drugs have been found. He was not here dealing with whether there was any proof of control of the premises but with basic facts that must be proved to establish possession. He made reference to "control" of the dangerous drugs while explaining to the jury that a person would have possession thereof even though he did not have actual custody of the drugs. He was pointing out that a person who had no actual custody of the drugs might, nonetheless, as a matter both of law and commonsense, be held to have them in his possession. Had the Crown been required to prove possession, without the assistance of any presumption, it would have been necessary for the judge to tell the jury that the intention to possess must be coupled with the ability to reduce the drugs into possession. However, as the Crown was relying on the presumption under s. 47, it was not necessary strictly to prove possession nor was it necessary for the Judge to direct the jury with regard to the elements thereof. The matter turned not upon strict proof of all of the elements that go to make up possession but upon proof of possession by use of the presumption. The direction as to proof of possession was incomplete but, in the circumstances of this case, this was of no materiality.

13. The trial judge dealt with the question of control of the premises in the paragraph which appears at the bottom of page 5 of the summing-up. He read Section 47 to the jury, then said:-

“Well, the Crown must prove, and prove beyond a reasonable doubt in the first place that the defendant had these premises under his control before the presumption arises at all. You would have to be sure that the defendant, although perhaps not the legal tenant, because he wasn't old enough to sign the lease, was in fact in control of the premises by virtue of the fact that firstly he negotiated with the landlady, he paid the deposit and the first month's rent, he gave her his address and phone number, he made arrangements for the payment of rent into her bank account and for the delivery of rent receipts etc. Now once you are sure of this, then the presumption arises, and there is a burden on the defendant to prove, on a balance of probabilities, in other words that it is more likely than not, that the drugs were not in his possession, and it would appear that Mr Mackay does not dispute that the presumption does arise in respect of this count.”

This was a proper direction as to the effect of the presumption and the type of evidence necessary to bring it into play. The trial judge told the jury in clear terms that if they were sure that there was evidence of control which would bring the presumption into play, then possession was proved. We are satisfied that no complaint can properly be made as to that direction of law.

14. We turn now to Mr Adam's second point which was that there was no evidence to establish control of the premises by the applicant at the material date - 28th March 1986. Mr Adams pointed out that the applicant had not in law, become the tenant. We are, however, in this context concerned not with whether there was a lawful or beneficial tenancy but with whether there was proof that the applicant had control of the premises. The applicant, while admitting that he was the beneficial tenant, that he had paid the rent for November, and that he went into possession in that month, said that he had relinquished possession at the end of November to a sub-tenant and that he did not pay rent thereafter. The landlady, however, said that he acknowledged that he was a tenant and was still liable for the rent in February and that shortly after this acknowledgement, the rent was paid. He agreed that he had so acknowledged but said that this was done untruthfully to conceal from the landlady the existence of the sub-tenancy.

15. The applicant was saying that he had divested himself of the control which he took as beneficial tenant in November 1985. It was open to the jury to reject his evidence as to a sub-letting, to reject his evidence that his acknowledgement to the landlady was a lie. If they did so there was, in our view, evidence from which they could infer control continuing up to the 28th of March, the date of the charge. We are satisfied for the above reasons that there is no substance in the first three grounds of appeal raised by the applicant with regard to the third count.

16. Mr Adams, in grounds five and six, which were termed “general grounds", submitted that the trial judge had made a number of prejudicial and unfair statements in his summing-up when commenting upon the applicant's statement to the police and his evidence and that he had failed to remind the jury of a number of matters which were in favour of the applicant. It was submitted that these matters, particularly when allied with the other grounds, made the conviction unsafe and unsatisfactory. We see no merit in any of these grounds. Comments made by the judge upon the statement of the applicant and his evidence were prefectly proper ones. We are satisfied that the summing-up adequately canvassed the evidence. The real complaint is that the judge failed to give particular stress to matters favourable to the defence. It was, in the circumstances, in our view, not required that the judge place any such undue stress upon these matters.

17. We turn now to ground four of the grounds of appeal in which it was submitted that the applicant should not have been convicted of the eighth count as he was not the tenant of the premises. The point here is a short one. Mr Adams says that “tenant" means legal tenant and that, at most, the applicant was proved to have been the beneficial tenant. Section 37 of the Ordinance provides as follows:-

“37.(1) No person shall -

(a) Being the owner tenant, occupier or person in charge of any place or premises, commit or suffer such place or premises or any part thereof to be opened, kept or used as a divan or for unlawful trafficking in or the unlawful manufacturing or storage of a dangerous drug;"

The legislature in Section 37 is dealing with persons who are owners, tenants, occupiers of persons in charge of premises used as divans or for unlawful trafficking in or the unlawful manufacturing or storage of dangerous drugs. It was the clear intention of the legislature to strike at persons having the overall control of such premises. Given this we are satisfied that it was intended by the use of the word “tenant” to cover both lawful tenants and beneficial tenants having the capacity to control the premises. Indeed in the Court below this was assumed to be so. There was evidence upon which the jury could have been satisfied that the applicant was the beneficial tenant having the capacity to control the premises at the material time and this ground must, therefore, also fail.

18. Leave to appeal against conviction is refused.

19. The 1st defendant and the 4th defendant are appealing against sentence, alleging that the judge in passing sentence gave insufficient weight to the pleas of guilty made by them at the outset of the trial and that he erred in the criteria to be applied when considering the discount to which the defendants are entitled. Mr Adams appears for the 1st defendant and Mr Mackay for the 4th defendant on the appeals against sentence. When sentencing the 1st defendant, the judge said:-

“The only mitigating factor in your guilty plea, though this attracts less weight than usual in the light of the 3rd defendant's statement to the police which heavily implicates you.”

20. When sentencing the 4th defendant, he said:-

“I am also prepared to give you one year discount in respect of your plea, though what 1 say in respect to the 1st defendant also applies to you so far as that is concerned. There are no other mitigating factors in your case."

21. Both counsel argued that there was nothing before the Court which would have allowed the Judge to proceed upon the basis that the defendants had, in effect, no option but to plead guilty once they discovered that the 3rd defendant had made a statement implicating them. We have examined these submissions and the evidence before the Court with care and are satisfied that the Judge did overstate the position in this regard. There was nothing before the Court to establish with any certainty that the guilty pleas by the defendants were influenced by the fact that the 3rd defendant was prepared to give evidence implicating them. We are satisfied that they should have been given a normal discount for their pleas of guilty and that this should have been 3 years in the case of the 1st defendant and 2 years in the case of the 4th defendant. The applications will be treated as the hearing of the appeals. The sentences on the 1st defendant on the first three counts of 14 years will, in each case, be varied to sentences of 12 years. The sentences on the other two counts will remain the same and all sentences will be concurrent. The sentence on the 4th defendant of 10 years will be varied to one of 9 years.