R. v. CHEUNG SAI-LUN

IN THE COURT OF APPEAL

1992, No. 311
(Criminal)

HEADNOTE

Reasons for verdict - charge of possession of dangerous drugs for purpose of unlawful trafficking - s.80 District Court Ordinance - Judge failed to state reasons for finding the ingredient of purpose proved - appeal allowed and conviction quashed.

IN THE COURT OF APPEAL

1992, No. 311
(Criminal)

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J U D G M E N T

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Litton J.A.:

1. On 10 June 1993 we heard Cheung Sai-lun's applications for leave to appeal against conviction and sentence out of time, granted the applications, treated the hearing as the hearing of the substantive appeals and allowed the appeals. We said we would hand down the reasons in due course. I do so now on behalf of the court.

2. The applicant was convicted on 21 July 1992 on three charges by His Honour Judge Kilgour in the District Court. The three offences arose from the same incident which occurred on 29 August 1991. The first charge was possession of a dangerous drug for the purpose of unlawful trafficking, for which the applicant was sentenced upon conviction to imprisonment for five years. The second charge was for offering an advantage, namely $5010 in cash, to the arresting police officer for which the applicant was sentenced to six months' imprisonment, consecutive to the sentence on the first charge. Thirdly, the applicant was charged with resisting a police officer in the due execution of his duty, for which he was sentenced to one months' imprisonment to be served concurrently with the first two. In total the applicant was sentenced to five and a half years' imprisonment.

3. The application relating to conviction is confined to the first charge, the particulars of which are as follows:

Particulars of offence

CHEUNG Sai-lun, on the 29th day of August, 1991, at the junction of Cheong Wah Street and Castle Peak road, Kowloon, .... had in his possession a dangerous drug, namely 55.02 grammes of a mixture containing 43.19 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein.

4. The facts are straight-forward. The applicant was stopped at about 8.05 p.m. on 29 August 1991 by a police plain-clothes patrol at the junction of Cheong Wah Street and Castle Peak Road. He was carrying a black handbag. When searched he was found to have $5,010 in a wad of banknotes in his trousers pocket. In the black handbag were found three transparent plastic bags, wrapped in paper, which upon subsequent examination were the dangerous drugs stated in the charge. There was also a wallet belonging to the applicant in the black handbag. He was carrying a portable telephone.

5. When the applicant was told he was under arrest, he asked the police to free him and offered them the wad of banknotes which was in his pocket. When the police tried to handcuff him the applicant broke free but was caught after a struggle. The police then subdued him and managed to handcuff him. The applicant then said to the police there was a drugs deal imminent at the Sham Shui Po Ferry Pier and if the police released him he would give the case to the arresting officer.

6. The applicant elected not to give evidence at his trial and called no witnesses.

7. The defence, as it emerged from cross-examination, was that the bag did not belong to the applicant and, by implication, he did not know it contained drugs.

8. In his Reasons for Verdict, the District Judge, perhaps because of the way the defence was conducted, focused his entire attention on the question whether the prosecution case sufficiently established the applicant's knowledge of the contents of the bag. He concluded after examining the evidence that the applicant was aware of the contents. No-where in the Reasons for Verdict, except in conclusion, did the judge deal with the separate ingredient in the charge namely that the possession of the drugs, in the three packets, was for the purpose of unlawful trafficking. This gave rise to the only ground of appeal argued before us which is in these terms:

The learned judge failed to consider at all whether the applicant was in possession of the drugs for the Purpose of unlawful trafficking given that he was not able to rely at the date of trial upon any presumption of unlawful trafficking.

9. The trial before the judge took place about one month after the enactment of Ordinance No. 52 of 1992 which effected substantial amendments to Part VII of the Dangerous Drugs Ordinance. Although the offence had occurred on 29 August 1991, the prosecution could not, of course, have relied upon the evidential presumption as to possession for the purpose of unlawful trafficking contained in section 46(d)(v) of the Dangerous Drugs Ordinance because of the decision of this court in Sin Yau Ming (1992)1 HKCLR 127

which had declared that section inconsistent with Article 11(1) of the Hong Kong Bill of Rights. The prosecution was constrained, therefore, to prove on the evidence that the applicant was in possession of the dangerous drugs in the black bag for the purpose of unlawful trafficking.

10. At the end of his Reasons for Verdict, the judge simply said that he was satisfied beyond reasonable doubt that the applicant was guilty of possession of drugs for such purpose. Is this sufficient to comply with the requirements of section 80 of the District Court Ordinance which, before its amendment by Ordinance 1 of 1993, required a District Judge to "place on record a short statement of his reasons for the verdict"?

11. Mr. Saw, for the respondent, argues that the evidence of purpose was so overwhelming that it was too obvious to mention: if the judge found, as he did, that the applicant knew the contents of the bag were dangerous drugs, there could have been no purpose for such possession other than that of unlawful trafficking therein. Whilst this might be an argument for saying that, in all the circumstances of the case, no actual miscarriage of justice has taken place, and that we should apply the proviso to section 83(1) of the Criminal Procedure Ordinance, it does not answer the basic question: have the provisions of section 80 of the District Court Ordinance, requiring a judge to state reasons for his verdict, been fulfilled?

12. The question we put to Mr. Saw, in the course of argument, was this: assume that the judge did not state the reasons why he found as a fact that the applicant knew the bag contained drugs and merely stated his conclusion, would this be sufficient? Mr. Saw was constrained to answer NO.

13. If, for one ingredient of the charge, namely possession, the judge was required to state his reasons for verdict, he must equally be required to state his reasons (in however brief a form) for finding the other ingredient proved, namely, the purpose for which the applicant had the drugs in his possession on the date charged.

14. The judge, at the commencement of his Reasons for Verdict, said this:

"These charges were laid prior to the 26 July 1992 and the latest Dangerous Drugs legislation. The Crown however does not rely on the latest presumption to be enacted".

15. The judge was, of course, referring to Ordinance No. 52 of 1992 enacted on 26 June 1992 and by the "latest presumption to be enacted" the judge must have meant section 47(1) which raises an evidential presumption of possession of dangerous drugs and knowledge on the part of the accused where he is proved to have had in his physical possession a container such as the black bag with drugs inside. The presumptions as regards the purpose for which an accused had the drugs in his possession were by Ordinance 52 of 1992 removed from the statute book. This focus on the evidential presumption regarding possession emphasises the burden resting on the prosecution in this case to establish by evidence the purpose for which the applicant had in his possession the drugs on the date charged. The judge, in his Reasons for Verdict, did not make any specific finding bearing upon this ingredient of the offence.

16. Counsel for the Crown suggests that the judge must have had this ingredient in mind because, at the conclusion of defence counsel's speech, he reminded the judge that the Crown had to prove (1) that the applicant had the drugs in his possession for the purposes of unlawful trafficking and (2) knew that there were drugs [in the bag].

17. In our judgment, the requirements of section 80 of the District Court Ordinance do not admit of such speculation. However shortly stated, there must be reasons which could sustain a conviction. The requirements are not onerous. Regrettably, there has been a lapse in this case. In our judgment, this ground of appeal succeeds.

18. It remains for us to consider whether we should apply the proviso to section 83(1) of the Criminal Procedure Ordinance, dismissing the appeal on the basis that no miscarriage of justice has actually occurred. The evidence against the applicant raises considerable a suspicion that he had the drugs in his possession for the purpose of trafficking. The circumstances surrounding his arrest on 29 August 1991 suggests desperation on his part, springing perhaps from a realisation that if convicted of the more serious offence he was likely to be imprisoned for a long time. The quantity of drugs was not small: enough to sustain the requirements of an addict for a long time. On the other hand, the drugs were separated into only three packets: not in a form ready for use by the individual addict : in other words, not in a readily marketable form. What has to be shown, beyond a reasonable doubt, is that the applicant possessed the drugs for the purpose of unlawful trafficking therein on the date charged; the fact that there was a risk, even a considerable risk, that he might traffick in the drugs on some future occasion is not enough.

19. This is a border-line case. The prosecution evidence is strong, but not in our judgment so compelling that the judge must necessarily have convicted the applicant if he had weighed all the evidence bearing on the ingredient of unlawful purpose.

20. For these reasons we quashed, on 10 June 1993, the conviction of possession of the dangerous drugs for the purpose of unlawful trafficking therein and substituted in its place a conviction of the offence of simple possession.

21. As regards sentence, plainly, the term of imprisonment of five years must be set aside. Having regard to the fact that the sentence of six months' imprisonment on charge two was consecutive to the sentence on charge one, we imposed such sentence on charge one as enabled the applicant to be immediately released.