HKSAR v. TSANG WAI KI AND ANOTHER

1997, No. 50

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Gall, J : (delivering the judgment of the Court)

1. The applicants were convicted on 30^th December 1996 in respect of the 1^st applicant of two counts of trafficking in a dangerous drug and in respect of the 2^nd applicant one count of trafficking in a dangerous drug.

2. The case for the prosecution was that premises had been rented by the 2^nd applicant and that the police arrested him in the street outside those premises at about 12:30 on 9^th October 1994. They set up an ambush vicinity in the vicinity of the premises and the 1^st applicant approached the premises at about 9 o'clock that evening. There was a dispute as to what happened at that time , but it was the case for the prosecution that the 1^st applicant was found in possession of three keys which opened the outer door to the premises and the two outer doors to the room in which drugs were found and that he was also in possession of two small bags of heroin containing a total of 15.90 grammes hidden in his underwear.

3. The case raised by each of the applicants does not concern us.

4. The first matter with which we will deal is in respect of the conviction by the 1^st applicant on the first count. It was necessary for the learned judge, in instructing the jury, to deal with that evidence which proved the applicant had trafficked in the drugs set out in the first count. He said :

"In respect of the first charge, if you accept to satisfy yourselves that the police had found two packets from the 1^st defendant outside flat A, then it is your duty to convict him in respect of the first charge because if he carried the drugs from one place to another, he must be dealing in or dealing with the drugs."

The carriage by a person of a packet of dangerous drugs unlawfully from one place to another does not give rise to the only reasonable inference that the carrier was trafficking in those drugs. It was an inadequate direction as to what evidence constituted trafficking which must also give us cause for concern that the conviction in respect of the 1^st applicant on the first count is unsafe and unsatisfactory.

5. We can deal with the second count briefly.

6. In respect of the 2^nd applicant, the trial judge directed the jury in these terms :

"....... Equally, if from all the circumstances of the case you are satisfied that the only inference to be drawn is that the 2^nd defendant being the tenant of room A3, he acted as a part of the joint plan with the 1^st defendant, if you are satisfied that is the case, then also it is your duty to convict."

7. It is clear, and it is conceded by the respondent to these appeals, that there was no evidence of a joint enterprise between the 1^st and the 2^nd applicants in this matter. The learned judge directed the jury that if they were satisfied that the only inference they could draw in respect of the second count was that the 2^nd Applicant acted "as part of a joint plan with the 1^st Defendant" then they should convict him of that count. To do so was to raise in the minds of the jury in respect of both applicants an issue of joint enterprise which was not supported by the evidence.

8. We treat the application for leave to append as the appeal. The appeal of each of the applicants against conviction is granted, the convictions quashed and the sentences set aside.

9. Having heard the application and the respondent we are satisfied that in all the circumstances this is a proper matter for retrial and we so order.